# 11 S.C.R. 599 RIJU PRASAD SARMA ETC. ETC v. STATE OF ASSAM & ORS

- **Citation:** [2015] 11 S.C.R. 599
- **Court:** Supreme Court of India
- **Decided:** 2015
- **Case number:** Civil Appeal Nos. 3276-3278 of 2013
- **Bench:** Fakkir Mohamed· Ibrahim Kalifulla, Shiva Kirti Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/11-s-c-r-599-riju-prasad-sarma-etc-etc-v-state-of-assam-ors-30297
- **Pages:** 65

## Headnote

Trust and Charities:
Assam State Acquisition of Lands Belonging to
Religious or Charitable Institutions of Public Nature Act, 1959:
A
B
c
s. 25A - Scope of - Public religious endownment
relating to Maa Kamakhya Temple - Custom pertaining to a D
temple where women barred from voting to elect thff temple
priest - Challenge to - Single Judge upheld the vires of s.
25A - Division Bench held thats. 25A has very limited scope;
and on the basis of the purported customary practices, the
electorate for the election to the post of Doloi (Head Priest)
E
should be confined only to the male members of the four
Bordeurie families - Interference with - Held: Not called for
• - Division Bench rightly upheld the right of the trusteesBordeories, their elected agent, the Dolois to take care of F
management of secular as well as religious affairs of the
Kamakhya Temple - Powers of Bordeories and Dolois has
not been taken away or adversely affected by the Act -
Statutory Comfflittee uls.25A is concerned only with the
annuity payable or paid under the Act to trye Head of the G
Institution and not with its ownership or management- There
is no legislation to exercise restraints in matters essentially
religious - There has been no interruption in the essential
custom whereunder the Bordeori Samaj consisting of all adult
males of Bordeori families enjoys exclusive monopoly over H
599
600
SUPREME COURT REPORTS
[2015] 11 S.C.R.
A
the power to elect Dolois - Custom of electing the Dolois
was attempted to be changed by the Kamakhya Debutter
Regulation but such Regulation does not have acceptance
of the Bordeori Samaj - Regulation, 1998 is not a valid
instrument and has no sanction of law for depriving the
8
customary rights of the Bordeori Samaj to elect the Dolois.
s. 25A - Assam State Acquisition of Lands belonging
to Religious or Charitable Institutions of Public Nature
(Election of Managing Committee of Sri Sri Maa Kamakhya
C
Temple) Rules, 2012 - Validity of - Challenge to, on the
ground that though the electoral college for the post of eJ?-
officio Secretary to the Managing Committee includes
"deuris/Bordeuris, but the said Rules exclude the Deuris
(both male and female) and the female bordeuris of their
D voting rights as well as the right to contest- Held: CJ (b) ins.
25A gives a choice or option for electing the ex-officio
secretary either by Dearies or Bordeories depending upon
the facts of a particular religious or charitable institution -
Rules of 2012 seek to provide for a Managing Committee in
E terms of s. 25A only for Maa Kamakhya temple - State
Government in the context of this particular institution has
recognized only Bordeories - Other Devotees, Shebaits and
Dearies, have a right to participate in. the election of other •
F five members of the Managing Committee - Thus, the Rules
supplem~nt the provisions of the Act and do not run counter
to the intention of the lecislature- Such Rules must be treated
as part of the Act and in absence of any conflict, the Rules
only explain the real intention of the legislEfture in using the
G sign of slash (/) between the words Dearies and Bordeories
in Cl (b) of s. 25A.
s. 25A - Nanan Bordeuris filing writ petition regarding
the validity of s. 25A and the rights of the shebaits - Held:
H Bordeori families enjoy a distinct status and monopoly in
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM
601
&ORS.
matters connected with the religious as well as secular A
management of Maa Kamakhya temple and hence, the claim
of equality on behalf of Deoris associated w11h the Nanan
Devalayas or even with Maa Kamakhya Temple cannot be
accepted - State cannot be blamed for creating two electoral
colleges and confining election rolls for the post of ex-offieio B
secretary only to the members of the Bordeori families
including females - Alleged discrimination vis-a-vis Deoris
has no foundation - Plea that Rules must cover not only the.
temple and endowment of Maa Kamakhya Devalaya but the
entire complex including Nanan

## Text

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[2015) 11 S.C.R. 599
RIJU PRASAD SARMA ETC. ETC.
v.
STATE OF ASSAM & ORS.
(Civil Appeal Nos. 3276-3278 of 2013)
JULY07,2015
[FAKKIR MOHAMED· IBRAHIM KALIFULLA AND
SHIVA KIRTI SINGH, JJ.]
Trust and Charities:
Assam State Acquisition of Lands Belonging to
Religious or Charitable Institutions of Public Nature Act, 1959:
A
B
c
s. 25A - Scope of - Public religious endownment
relating to Maa Kamakhya Temple - Custom pertaining to a D
temple where women barred from voting to elect thff temple
priest - Challenge to - Single Judge upheld the vires of s.
25A - Division Bench held thats. 25A has very limited scope;
and on the basis of the purported customary practices, the
electorate for the election to the post of Doloi (Head Priest)
E
should be confined only to the male members of the four
Bordeurie families - Interference with - Held: Not called for
• - Division Bench rightly upheld the right of the trusteesBordeories, their elected agent, the Dolois to take care of F
management of secular as well as religious affairs of the
Kamakhya Temple - Powers of Bordeories and Dolois has
not been taken away or adversely affected by the Act -
Statutory Comfflittee uls.25A is concerned only with the
annuity payable or paid under the Act to trye Head of the G
Institution and not with its ownership or management- There
is no legislation to exercise restraints in matters essentially
religious - There has been no interruption in the essential
custom whereunder the Bordeori Samaj consisting of all adult
males of Bordeori families enjoys exclusive monopoly over H
599
600
SUPREME COURT REPORTS
[2015] 11 S.C.R.
A
the power to elect Dolois - Custom of electing the Dolois
was attempted to be changed by the Kamakhya Debutter
Regulation but such Regulation does not have acceptance
of the Bordeori Samaj - Regulation, 1998 is not a valid
instrument and has no sanction of law for depriving the
8
customary rights of the Bordeori Samaj to elect the Dolois.
s. 25A - Assam State Acquisition of Lands belonging
to Religious or Charitable Institutions of Public Nature
(Election of Managing Committee of Sri Sri Maa Kamakhya
C
Temple) Rules, 2012 - Validity of - Challenge to, on the
ground that though the electoral college for the post of eJ?-
officio Secretary to the Managing Committee includes
"deuris/Bordeuris, but the said Rules exclude the Deuris
(both male and female) and the female bordeuris of their
D voting rights as well as the right to contest- Held: CJ (b) ins.
25A gives a choice or option for electing the ex-officio
secretary either by Dearies or Bordeories depending upon
the facts of a particular religious or charitable institution -
Rules of 2012 seek to provide for a Managing Committee in
E terms of s. 25A only for Maa Kamakhya temple - State
Government in the context of this particular institution has
recognized only Bordeories - Other Devotees, Shebaits and
Dearies, have a right to participate in. the election of other •
F five members of the Managing Committee - Thus, the Rules
supplem~nt the provisions of the Act and do not run counter
to the intention of the lecislature- Such Rules must be treated
as part of the Act and in absence of any conflict, the Rules
only explain the real intention of the legislEfture in using the
G sign of slash (/) between the words Dearies and Bordeories
in Cl (b) of s. 25A.
s. 25A - Nanan Bordeuris filing writ petition regarding
the validity of s. 25A and the rights of the shebaits - Held:
H Bordeori families enjoy a distinct status and monopoly in
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM
601
&ORS.
matters connected with the religious as well as secular A
management of Maa Kamakhya temple and hence, the claim
of equality on behalf of Deoris associated w11h the Nanan
Devalayas or even with Maa Kamakhya Temple cannot be
accepted - State cannot be blamed for creating two electoral
colleges and confining election rolls for the post of ex-offieio B
secretary only to the members of the Bordeori families
including females - Alleged discrimination vis-a-vis Deoris
has no foundation - Plea that Rules must cover not only the.
temple and endowment of Maa Kamakhya Devalaya but the
entire complex including Nanan Devalayas has no support C
or basis in law - Thus, their exclusion by virtue of Rules
notified by the State Government is not unconstitutional.
Actual election of. Dolois as also electoral college
prepared for that election - Challenge to - On the ground of D
exclusion of women Bordeories and other Deuris, both male
and fem{Jle - Held: Custom confining the right to vote to only
the male Bordeuris to the exclusion of Deuris (both male
and female) and the female Bordeuris is not in existence on
account of any State action - Maa Kamakhya Temple is an E
ancient religious institution of public nature and occupies a
place of pride among Hincfu temples - Monopolistic control
of Bordeories over the religious and secular spheres· of the
temple had been resented and challenged by the other F
priests including Dearies Of Nanan Devalayas bui without
success -Appellants have taken resort to a proceeding u/s.
92 CPC before the District Judge - There is no authoritative
textual commentary or report to help this Court in coming to
a definite finding that women belonging to Bordeori families G
·are equally a{:lapt in religious or secular matters relating to
that temple - Relevant scriptures have also not been
disclosed to this Court - 1hus, there cannot be a definite
finding on the issue of equality- Constitution of India, 1950.
H
602
SUPREME COURT REPORTS
[2015] 11 S.C.R.
A
Constitution of/ndia, 1950:
Arts. 25(2)(a) and 26(b)-Religious endownments and
religious institutions - Right to manage affairs in the matter ,
of religion - Held: Social reforms or the need for regulations
s cpntemplated by_JJ,rt. 25(2) cannot obliterate essential
religious practices or their performances - Essential part of
a religion can be ascertained with reference to the doctrine
of that religion itself- On facts, Bordouries are the trustees
as well as the priest and they have entrusted the
C management of religious and secular activities to their
elected representatives, the Dolois - Element of appointment
stands substituted by the action of the trustees themselvesThere is no statute framed by the State so far to regulate
even the secular affairs of the temple - Only when such State
D action takes place, examination of whether interference with
the custom governing appointment of Dolois would amount
to regulating only the secular affairs of the temple or it would
obliterate the essential religious practices would arise.
E
Arts. 13(1), 25(2)(a) and 26(b) - Personal laws and
religious practice - Whether covered by Art. 13(1) - Held:
Article 13(1) applies only to such pre-constitution laws
including customs inconsistent with the provisions of Part Ill
of the Constitution and not to religious customs and personal
F laws protected by the fundamental rights such as Arts. 25
and 26 - Religious freedoms protected by Arts. 25 and 26
can be curtailed only by law, made by a competent legislature
to the permissible extent-Art. 25(2) provides scope for the
State to study and understand all the relevant issues before
G undertaking the changes and reforms relating to religion
which are sensitive - Court can examine and strike down a
State action or law on the grounds of Arts. 14 and 15.
Article 12-Definition of State under - Courts, if included
H in the definition of State - For purposes of issuance of writ, if
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM
603
&ORS.
judicial decisions by the judiciary can be included in State A
action - Held: Judiciary cannot be a State u!Art. 12- While
acting on the judicial side the courts are not included in the
definition of the State - Only when they deal with their
employees or act in other matters purely in administrative
capacity, the courts may fall within the definition of the State B
for attracting writ jurisdiction against their administrative
actions only - It cannot be said that while acting in judicial
capacity the judiciary acts as the State and hence it must, as
a corollary, entertain a writ petition against purely private
parties only because the matter has been brought before the C
court.
Locus standi - Public religious endownment relating
to Maa Kamakhya Temple - Locus standi of administrator
of Kamakhya Debuttar Board-appellantto represent the deity D
of the temple - Single Judge upheld the locus standi of the
appellants -
Division Bench held that the Kamakf)ya
Debutter Regulations/Board has no sanctity in Jaw - On
appeal, held: Writ petitions before the Single Judge or the
Division Bench claimed rights in the petitioners as E
administrator or as lawful representative of religious
endowment or the deity and were not in the nature of PIL - In
view of strong and categorical denial made by respondents
to the right of the Debutter Board to represent the deity of F
temple in writ petition, the Division Bench could not have
ignored the issue of rights and status - On being called upon
through pleadings, it was necessary for the Division Bench
to decide the locus of appellants representing the Debutter
Board - It cannot be said that the Division Bench erred in G
deciding the locus of the Debutter Board represented by the
appellants.
Dismissing.the appeals and the writ p"etitions, the
Court
H
604
SUPREME COURT REPORTS
(2015] 11 S.C.R.
A
HELD: 1.1 The Division Bench rightly examined the
width and scope of the powers of customary trusteesthe Bordeories and their elected agent, the Dolois
considering all the relevant materials and custom, it
committed no error in upholding their right to take care
B of management of secular as well as religious affairs of
the Kamakhya Temple. The powers of the Bordeories
and Dolois has not been taken away or adversely
affected by the Assam State Acquisition of Lands
Belonging to Religious or Charitable Institutions of
C Public Nature Act, 1959 as it stood earlier or even after
Section 25A was inserted. The statutory power of the
Committee under Section 25A is quite limited to
verification of the proper maintenance of accounts of the
0 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 manag~ or oversee even only the secular
aspect of management of the Institution will not only run
E counter to the objects and reasons for the Amending Act
of 1987, it would create an undesirable diarchy when the
Act does not divest the Bordeories and Dolois of their
customary powers, roles and rights. Hence, Section 25A
postulates a Committee with limited role - only to
F exercise control over annuity and other grants under the
Act and its proper accounting, if and when utilized,
through the power of verification of relevant accounts
for proper maintenance of Institutions. The said inference
is in view of peculiar features of the Act dealing mainly
G with acquisition of lands of certain types of Institutions.
Within the constitutional scheme guaranteeing freedom
of religion, the legislature has to exercise restraints in
matters essentially religious but still it ~as ample powers
to legislate for better management of any religious or
H charitable Institution of public nature. However, in the
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM
605
&ORS.
instant case, there is no such legislation. [Paras 27 - 29] A
[637-D-H; 638-A-G]
1.2 There has been no interruption in the essential
custom whereunder the Bordeori Samaj consisting of
all adult males of Bordeori families enjoys exclusive B
monopoly over the power to elect Dolois. There is no
merit in the plea that if there was a custom in favour of
Bordeori Samaj, it stood discontinued by agreement or
by framing of some sort of Constitution in 1970 and/or
1973, such plea is vague and not backed by any C
acceptable evidence. So far Dolois have always been
elected as per the old custom, by the Bordeori Samaj.
The custom of electing the Dolois was no doubt
attempted to be changed by a group of persons who
claimed to have formulated and adopted the Kamakhya D
Deb utter Regulation but such Regulation does not have
acceptance of the Bordeori Samaj. [Para 30] [639-8-E]
1.3 Kamakhya Debutter Regulation, 1998 is not a
valid instrument and has no sanction of law for depriving E
the customary rights of the Bordeori Samaj to elect the
Dolois who have been customarily exercising the right
to manage the religious as well as secular affairs of the
Kamakhya Temple. Admittedly, the appellants have now
taken recourse to provisions of Section 92 CPC for F
seeking whatever relief they want against the Bordeori
Samaj and the Dolois elected by the Bordeori Samaj. In
view of their categorical submissions that this Court may
not make any observation which might affect either of
the parties in Section 92 CPC proceeding, the matter is G
left· at rest without commenting on the provisions of
Kamakhya Debutter Regulations. However, in the light
of discussions and findings made earlier, except to
clarify as pleaded on behalf of the appellants that Section H
25A of the Act provides for a Committee having only a
606
SUPREME COURT REPORTS
[2015) 11 S.C.R.
A narrow and limited role, there is no merit in the appeals
and no scope to interfere with the impugned judgment
of the Division Bench. This order, however, would not
prejudice the case of the appellants and similarly placed
persons in the proceeding under Section 92 CPC
B pending before the District Judge. [Para 31] [639-F-H;
640-A-C]
1.4 The rules "Assam State Acquisition of Lands
Belonging to Religious or Charitable Institution of Public
C Nature (Election of managing committee of Sri Sri Maa ·
Kamakhya Temple) Rules, 2012 are pursuant to order of
this Court for carrying out the elections of ex-officio
secretary and elected members of the managing
committee as contemplated by Section 25A in respect
D of Sri Sri Maa Kamakhya Temple. Rule 2 defines various
definitions such as Devotee, Temple and Bordeories. The
term 'Devotee' is wide enough to include all
worshippers, priests and shebaits or persons associated
with the Maa Kamakhya Temple residing permanently in
E Revenue Village Kamakhya either directly or through
ancestors since last 50 years or more. But Temple has
been defined to mean only the Temple of Sri Sri Maa
Kamkhya, Guwahati. Bordeories mean the devotees
F constituting the traditional Bordeori Samaj of the temple.
There are two electoral colleges u/r. 3, one for the election
to the post of ex-officio secretary, restricted to the
Bordeories of the temple and the other for the election
of five members of the managing committee, consisting
G of the 'Devotees'. Rule 6 requires the Deputy
Commissioner to treat the list of electors already
prepared by the Bordeories and published in connection
with the election of Dolois as the electoral rolls for the
election of ex-officio secretary. Claims and objections
H on the basis of such tentative electoral rolls are to be
RIJU PRASAD SARl\i1A ETC. ETC. v. STATE OF ASSAM
607 .
&ORS.
entertained from the Bordeories only. The traditional list A
of electors for election of Dolois includes only adult male
Bordeories and hence women members of Bordeori
families did not find place in the draft electoral rolls which
were published under the Rules. Deuries and priests of
other Devalayas are also not included in this electoral B
roll because for election to the post of ex-officio
secretary only the Bordeories are qualified to be in the
electoral college and be a candidate also. [Para 33, 34]
[641-G-H; 642-A-H]
1.5 The Bordeori familie)> enjoy a distinct status and
monopoly in matters connected with the religious as well.
c
as secular management of the temple of Sri Sri Maa
Kamakhya and hence, the claim of equality on behalf of
Deoris associated with the Nanan Devalayas or even D
with Maa Kamakhya Temple does not have any merit. In
view thereof, the State cannot be blamed for creating· two.
electoral colleges and confining election rolls for the
post of ex-officio secretary .only to the members of the
Bordeori families including females. The alleged E
discrimination vis-a-vis Deoris has no foundation. Fair
treatment to others interested in the temple is assured
by permitting the 'Devotees' to elect as many as five
members of the Managing Committee. Hence, the F
challenge to the impugned provisions in the Rules on
ground of Article 14 fails. The plea that Rules must cover
not only the temple and endowment of Sri Sri Maa
Kamakhya Devalaya but the entire complex including
Nanan Devalayas has no support or basis in law. The G
Act permits the State to constitute a Managing Committee
for each of the Institution covered by Section 25A of the
Act. It has not been pleaded or proved that Sri Sri Maa ·
Kamakhya temple and endowment is not so covered. In
fact the lands acquired under the Act appear mainly of H
608
SUPREME COURT REPORTS .
(2015] 11 S.C.R.
A main temple of Sri Sri Maa Kamakhya. It is discretionary
power under Section 25A under which the State may
choose not to have any Managing Committee separately
for the Nanan Devalayas. [Para 36) [644-B-G)
B
1.6 Clause (b) in Section 25A gives a choice or
option for electing the ex-officio secretary either by the
Deories or Bordeories depending upon the facts of a
particular religious or charitable institution. It is not the
· case of petitioners that all the institutions in the State
C have both Deories and Bordeories. In that view, it would
be inevitable to get the ex-officio secretary elected either
by the Deories or the Bordeories, whosoever may be
managing the concerned institution. [Para 39) [646-D-E]
D
1. 7 The terms 'Deories' and 'Bordeories' is not
defined under the Act. Under Section 30 of the Act. The
State Government has the power to make rules for
carrying out the purposes of the Act. Clearly the tas.k of
defining or explaining the terms 'Deories' or 'Bordeories'
E in the context of a particular institution has been left to
be done by making of Rules. The Rules of 2012 seek to
provide for a Managing Committee in terms of Section
25A only for the temple of Sri Sri Maa Kamakhya. Under
statutory powers, the State Government in the context
F of this particular institution has recognized only
Bordeories by referring to the traditional Bordeori Samaj
of the temple. The other Devotees, Shebaits and Deories,
if any, have been included in the category of 'Devotee'
with a right to participate in the election of other five
G members of the Managing Committee. The Rules of2012
thus, supplement the provisions of the Act and do not
run counter to the intention of the legislature which has
accepted the Rules of 2012 without exercising its power
H to make modifications. Such Rules must be treated as
part of the Act and in absence of any conflict it has to be
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM
609
&ORS.
held that the Rules of 2012 only explain the real intention A
of the legislature in using the sign of slash (/) between
the words Deories and the Bordeories in Clause (b) of .
the Section 25A. [Para 40] [646-G-H; 647-A-D]
1.8 The impugned custom confining the right to vote B
to only the male Bordeuris to the exclusion of Deuris
(both male and female) and the female Bordeuris is not
in existence on account of any State action. The temple
of Sri Sri Maa Kamakhya is an ancient religious
institution of public nature and occupies a place of pride C
among Hindu temples, especially as a Shakti Peeth. It is
evident that the monopolistic control of Bordeories over
the religious and secular spheres of the temple has been
resented and challenged by the other priests including
Deories of Nanan Devalayas but without success. The D
appellants have now taken resort to a proceeding u/s.
92 CPC which is pending before the District Judge. The
appellants and the petitioners evidently spared no efforts
to break the power and control of the Bordeories and
the Dolois but so far without success. [Para 42] [648-BE
F]
1.9 The dispute of treating women Bordeories equal
of men Bordeories for the purpose of electing the Dolois
· may be resolved only on basis of a detailed proper study F
of the customs and practices in the temple of Sri Sri Maa
Kamakhya but there is no authoritative textual
commentary or report which may help this Court in
coming to a definite finding that women belonging to
Bordeori families are equally adapt in religious or secular G
matters relating to that temple. The relevant scriptures
have also not been disclosed to this Court which could
have helped in ascertaining whether the basic religious
tenets governing the Shakti Peethas in the Kamakhya H
Temple would not stand violated by permitting female
610
SUPREME COURT REPORTS
[2015] 11 S.C.R.
A Bordeories to elect or to get elected as Dolois. Hence,
on facts there cannot be a definite finding on the issue
of equality. The same logic is equally, if not more
forcefully, applicable in the case of claim of the Deories
that they are equally situated as the Bordeories Samaj
B in the matter of election of Dolois. The petitioners have
also not explained at all as to why equality be extended
only to female Bordeories and Deories and not to all and
sundry. [Para 49] [652-F-H; 653-A-C]
C
1.10 It may not always be safe for a Writ Court to
decide issues and facts having great impact on the
general public or a large part of it only on the basis of
oath against oath. Where the right is admitted and well
established, the Writ Court would not hesitate in
D implementing s·uch a right especially a fundamental right
But enforcement of established rights is a different
matter than the establishment of the right itself. When
there is a serious dispute between two private parties
as to the expertise, experience and qualification for a
E particular job, the prime task before the Court is first to
analyse the facts for coming to a definite conclusion
wheth!'!r the right stands established and only when the
answer is in affirmative, the Court may have no difficulty
F in enforcing such an established right, whether
statutory, fundamental or constitutional. In the instant
case, it is indeed difficult for this Court to come to a
definite conclusion that the petitioners claim to equality
for the purpose at hand is well established. Hence, there
G is no option but to deny relief to the petitioners. [Para
50] [653-D-G]
1.11 Article 25(2)(a) and 26(b) guaranteeing the right
to every religious denomination to manage its own affairs
H in matters of religion are subject to and can be controlled
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM
611
&ORS.
by a law contemplated under Article 25(2)(b) as both.the A
Articles are required to be read harmoniously. The social
reforms or the need for regulations contemplated by
. Article 25(2) cannot obliterate essential religious
practices or their performances and what would
constitute the essential part of a religion can be B
ascertained with reference to the doctrine of that religion
itself. [Para 55] [656-C-D]
1.12 The matter of appointment of a competent
priest is a secular matter and therefore can be regulated C.
by a State action. However, the situation may be different
and more complicated if, like in the instant case, the
Bordouries are the trustees as well as the priest and the
management of religious·and secular activities have
been entrusted by the Bordouries themselves to their D
elected representatives, the Dolois. The element of
appointment stands substituted by the action of the
trustees themselves performing the necessary ritl!als.
There is no statute framed by the State so far to regulate
even the secular affairs of the temple. Only when such E
State action takes place, there may arise an occasion to
examine the related issues as to whether interference
with the custom governing appointment of Dolois would
amount to regulating only the secular affairs of the F
temple or it shall obliterate the essential religious
practices of the institution. [Para 58] [658-F-H; 659-A-B]
1.13 Article 13(1) applies only to such preconstitution laws including customs which are
inconsistent with the provisions of Part Ill of the G
Constitution and not to such religious customs and
. personal laws which are protected by the fundamental
rights such as Articles 25 and 26. In other words, religious
believes, customs and practices based upon religious H
612
SUPREME COURT REPORTS
[2015] 11 S.C.R.
A faith and scriptures cannot be treated to be void.
Religious freedoms protected by Articles 25 and 26 can
be curtailed only by law, made by a competent legislature
to the permissible extent. The Court can surely examine
and strike down a State action or law on the grounds of .
B Articles 14 and 15. But in in India, the task of carrying
out reforms affecting religious believes has to be left in
the hands of the State. This line of thinking is supported
by Article 25(2) which is clearly reformist in nature. It also
provides scope for the State to study and understand
C all the relevant issues before undertaking the required
changes and reforms in an area relating to religion which
shall always be sensitive. While performing judicial
functions stricto-sensu, the Judiciary cannot and should
0
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
E curtailing the fundamental rights including those under
F
G
H
Articles 25 and 26. [Para 59] [659-C-H; 660-A]
Baroda Kanta vs. Bangshi Nath AIR 1940 Cal. 269;
Sant Ram vs. Labh Singh 1964 (7) SCR 756;
Bhau Ram vs. B. Baijnath Singh 1962 (Suppl.) 3
SCR 724; Atam Prakash vs. State of Haryana &
Ors. (1986) 2 SCC 249: 1986 (1) SCR 399; Shirur
Math (The Commissioner, Hindu Religious
Endowments, Madras vs. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt.) 1954 SCR 1005;
Ti/kayat (Tilkayat Shri Govindlalji Maharaj vs. The
State of Rajasthan & Ors.) 19641SCR561; Raj
Bira Kishore Deb vs. State ofOrissa 1964 7 SCR
32; State ofRajasthan vs. Sajjanlal Panjawat1974
(1) SCC 500: 1974 (2) SCR 741; Pannalal
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM
613·'
.
&ORS ..
Bansila/ Pitti and Ors. vs. State of Andhra Pradesh
& Anr. 1996 (2) sec 498: 1996 (1) SCR 603; A.S.
Narayana Deekshitulu vs. State of A.P and
Ors.1996 9 SCC 548: 1996 (3) SCR 543; Sri Adi
. Visheshwara of Kashi Vishwa!"ath Temple,
Varanasi and Ors. vs. State of U.P & Ors. 1997
(4) sec 606: 1997 (2) SCR 1086; Bhuri Nath
vs. State of J & K 1997 (2) SCC 745: 1997 (1)
SCR 138; Sri Kanyaka Parameswari Anna Sa tram
Committee and Ors. vs. Commissioner, Hindu
Re1igious & Charitable Endowments Deptt. and
Ors; 1999 7 SCC 666; N. Adityam v. Travancore
Devaswrom Board (2002) 8 SCC 106: 2002 (3)
Suppl. SCR 76; M.P Gopalkrishnan Nair vs. State
of Kera/a 2005 (11) SCC 45: 2005 (3) SCR 712;
Durgah Committee vs. Syed Hussain Ali 1962 (1)
SCR 383; Shri Venkataramana Devaru and Ors.
v. State of Mysore and Ors. 1958 (SCR) 895; Bijoe
Emmanuel & Ors. vs. State of Kera/a & Ors. (1986)
3 SCC 615: 1986 (3) SCR 518- referred to.
Seshamma/ & Ors. etc. etc. vs. State of Tamil
Nadu 1972 (2) sec 11: 1972 (3) SCR 815 -
. distinguished.
A
B
c
D
E
1.14 The definition of 'the State' under Article 12 is F
contextual depending upon all relevant facts including
the concerned provisions in Part Ill of the Constitution.
The definition is clearly inclusive and not exhaustive.
Hence, omission of judiciary when the government and
Parliament of India as well as government and legislature G
of each of the State has been included is conspicuous
but not conclusive that judiciary must be excluded .
. Hence, in accordance with such judgments holding that
judgments of High Court and Supreme Court cannot be
subjected to writ jurisdiction and for want of requisite H
614
SUPREME COURT REPORTS
[2015] 11 S.C.R.
A governmental control, Judiciary cannot be a State under
Article 12, it is held that while acting on the judicial side
the courts are not included in the definition of the State.
Only when they deal with their employees or act in other
matters purely in administrative capacity, the courts may
B fall within the definition of the State for attracting writ
jurisdiction against their administrative actions only.
Such a contextual interpretation must be preferred
because it shall promote justice, especially through
impartial adjudication in matters of protection of
C fundamental rights governed by Part Ill of the
Constitution. [Para 60, 61] [660-C, F-H; 661-A]
1.15 If the submission is accepted that by simply
hearing a writ petition the Court becomes a party with
D same duties and responsibilities as the State, then the
rights which can be claimed only against the State can
also be claimed against all private parties because
judiciary has to hear and decide almost all cases. Such
plea is rejected otherwise all disputes against private
E persons would have to be treated as a dispute against
the State also, because it is primary responsibility of the
judiciary to hear and adjudicate all disputes. The judicial
forum would then loose its impartiality because the
F . instant petitioners, would make a demand that court itself
should act as the State and deliver all reliefs in a dispute
where the executive or the legislature is not at all involved
as a party. Thus, there is no merit in the contention that
while acting in judicial capacity the judiciary acts as the
G State and hence it must, as a corollary, entertain a writ
petition against purely private parties only because the
matter has been brought before the court. [Para 64] [661H; 662-A-D]
Pradeep Kr. Biswas vs. Indian Institute of
H
Chemical Biology & Ors. (2002) 5 SCC 111 : 2002
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM 615
&ORS.
(3) SCR 100; Naresh Shridhar Mirajkar And Ors
A
vs. State of Maharashtra And Anr. (1966) 3 SCR
7 44; Triveniben vs. State of Gujarat (1989) 1 SCC
678: 1989 (1) SCR 509; Poonam vs. Sumit
Tanwar(2010) 4 SCC 460: 2010 (3) SCR 557relied on.
B
Harjinder Singh vs. Punjab State Warehousing
Corporation 2010 (3) SCC 192: 2010 (1) SCR
591; Indira Nehru Gandhi vs. Raj Narain 1975
(Suppl.) SCC 1: 1976 SCR 347 - distinguished.
c
Case Law Reference
AIR 1940 Cal. 269
referred to
Para 14
1964 (7) SCR 756
referred to
Para 51
1962 (Suppl.) 3 SCR 724
referred to
Para 51
D
1986 (1) SCR 399
referred to
Para 51
1954 SCR 1005
I referred to
Para 53
19641 SCR 561
referred to
Para 53
1964 7 SCR 32
referred to
Para 53
E
1996 (1) SCR 603
referred to
Para 53
1996 (3) SCR 543
referred to
Para 53
1997 (2) SCR1086
referred to
Para 53
1997 (1) SCR 138
referred to
Para 53
1999 1 sec 666
referred to
Para 53
F·
2002 (3) Suppl. SCR 76
referred to
Para 53
2005 (3) SCR 712
referred to
Para 53
1962 (1) SCR 383
referred to
Para 53
1954 SCR 1005
referred to
Para 55
G
1958 (SCR) 895
referred to
Para 55
1986 (3) SCR 518
referred to
Para 56
1972 (3) SCR 815
distinguished.
Para 57
2002 (3) SCR 100
relied on.
Para 60
H
616
A
B
c
SUPREME COURT REPORTS
[2015] 11 S.C.R.
(1966) 3 SCR 744
relied on.
Para 60
1989 (1) SCR 509
relied on.
Para 60
2010 (3) SCR 557
relied on.
Para 60
2010 (1) SCR 591
distinguished
Para 62
1976 SCR 347
distinguished
Para 62
CIVILAPPELLATE JURISDICTION : Civil Appeal Nos.
3276-3278 of 2013
WITH
WP. (C) No. 72/2012
W.P. (C) No. 91/2012
W.P. (C) No. 140/2012
S.L.P. (C) No.18070-18072/2015
D
Shanti Bhushan, Jayant Bhushan, Bhasker P. Gupta, Dr.
Rajeev Dhavan, Jaideep Gupta Parthiv K. Goswami, Vaibhav
Tamar, Karma Dorjee, Gainilung Panmei, Sanjeeb Kr. Deka,
Anirudh Singh,Anupam Lal Das,Arunabh Choudhury, Kartik
E Seth, Diksha Rai, Vikash Singh, S. Hari Haran, Hrishikesh
Baruah, Nishant Das, lshant Das, Manish Goswami,
Rameshwar Prasad Goyal, Avijit Roy, Kankana Arandhara,
Apeksha Sharan (for Corporate Law Group), Ajay Bansal,
Ansar Ahmad Chaudhary, Gaurav Yadava, Puneet Taneja for
F the appearing parties.
The Judgment of the Court was delivered by
SHIVA KIRTI SINGH, J. 1. ThEl Civil Appeals arise out
G of three writ petitions, two of the year 2000 and one of the year
2002 which were heard together and disposed of by a learned
Single Judge of Guwahati High Court by a common judgment
and order dated 06.08.2004. That judgment was challenged
before the Division Bench through two writ appeals bearing
H W.A.Nos.311 and 312 of 2004 preferred by the appellants who
RIJU PRASAD SARMA ETC. ETC. v. STATE OF ASSAM
617
& ORS. [SHIVA KIRTI SINGH, J.]
confined the scope of the appeals only to the width and scope A
of Section 25A of the Assam State Acquisition of Lands
Belonging to Religious or Charitable Institutions of Public
Nature Act, 1959 (for brevity referred to as 'the Act'). Admittedly
neither the State Government nor the private respondents
preferred any cross appeal. However, there was a fresh writ B
petition filed directly before the Division Bench bearing Writ
Petition No.923/2005 preferred in the name of The Deity, Sri
Sri Ma Kamakhya claimed.to be represented by appellantRiju Prasad Sarma who further described himself as the
·Administrator, Kamakhya Debutter. The said writ petition C
sought to challenge the constitutional validity of Section 25A
of the Act. The writ appeals and the Writ Petition No.923 of
2005 were finally disposed of by a common judgment and
order of the Division Bench of Guwahati High Court dated D
25.10.2011 which is under challenge in the principal matter-.
Civil Appeal Nos.3276-3278 of 2013 filed by Sri Riju Prasad
Sa rm a & Ors. claiming to represent The Kamakhya Debutter
Board.
2. Along with the Civil Appeals three writ petitions bearing
E
No.72, 91 and 140 of 2012 have also been heard together as
connected matters because they either.throw a challenge to
the validity of the Section 25Aof the Act or the Rules framed
thereunder or to the actual election of Dolois held on
F
16.11.2011 on account of this Court not staying the direction
of the Division Bench to hold such election governed by custom.
The same dispute covered by the Civil Appeals noticed above
is sought to be raised again through S.L.P.(C) Nos .............. of
2015[CC 8089-8091/2012] which have been filed along with G
an application for permission to prefer the special leave
petitions by those who were not parties earlier, Hiten Sarma
and some others, against the same very common judgment of
the Division Bench dated 25.10.2011. This judgment shall
govern all the matters noticed above. For the sake of H
618
SUPREME COURT REPORTS
[2015] 11 S.C.R.
A
convenience the facts have been noted from the records of
civil appeals except where indicated otherwise.
3. It is necessary to have a look at the nature of the three
writ petitions decided by the learned single judge. But before
B that it will be useful to notice the background facts which led to
those writ petitions. The appellants have, in one of their written
submissions, furnished the introduction, it reads as follows:-
c
D
E
F
G
H
"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 ;;ilso known
inAssames as "Nanan Devalayas". The families of the
priests of the main temple call themseives "Bordeuris".
The families of the priests of the subsidiary temples are
known as "Deuris". The head priest is called the "Doloi''.
"Shebait" means and includes all the community of
persons who are directly connected to the performance
of any kind of duty associated with the temple complex
and thus, includes the Bordeuris, Deuris and other
Braham in and non Brahm in persons directly connected
to the performance of any kind of duty associated with ·
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
RIJUPRASADSARMAETC.ETC. v. STATEOFASSAM
619
& ORS. [SHIVA KIRT! SINGH, J.]
by Shri Riju Prasad Sarma & Ors. (representing the A
Kamakhya Debuttar Board) challenging the final
judgment and order of 25.10.2011 passed by the Division
Bench of the Hon'ble Guhati High Court.
ln the said
matter, the Learned Single Judge had upheld the locus
standi of the appellants on the ground that it does not lie
B
in the mouth of the State Respondents/Private
Respondents to challenge the authority of the Kamakhya
Debuttar Board to manage the affairs of the temple as
they have not made any attempt to de-recognize or
question its authority in any court oflaw. (pg.216). The . C
learned Single Judge had also upheld the vires of Section
25A of the Assam State Acquisition of Lands belonging
to Religious or Charitable Institutions of Public Nature
(Amendment) Act, 1987 (pg.218-225). The appellants 0
preferred a l!mited Writ Appeal confined to the scope of
Section 25A of the said Act. There was no cross appeal
preferred by the State Government or the Private
Respondents. The Division Bench of the Hon'ble
Guwahati High Court vide impugned judgment has held· E
that Section 25A of the said Act has very limited scope
confined to the language used in the said provision and
has held as follows:
"117 ..... Section 2.5A, as would be apparent on its face,
only engrafts the enjoinment of the legislature for the
F
constitution of a Managing Committee to exercise control
over the matter of utilization of annuity and verification of
the proper maintenance of the institution ..... "
It may be mentioned that all the parties have stated on G
Affidavit before this Hon'ble Court that the said
interpretation rendered by the Division Bench of the
Hon'ble Guwahati High Court is correct. Thus,
interpretation of Section 25A of the Act is not in issue
anymore.
H
620
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2015] 11 S.C.R.
However, the Division Bench of the Hon'ble Guwahati
High Court has erroneously reversed the finding of the
Learned Single Judge on the issue of the locus standi of
the appellants and has further held without any basis
whatSoever that the Kamakhya Deb utter Regulations/
Kamakhya Debutter Board has no sanctity in law (pg.3436). 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 shouli:t be confined only
to the male members of the four Bordeurie families
(pag.89-90).
In terms of the order dated 13.5.2002 passed by the
Hon'ble High Court and the orders dated 11.11.2011 and
21.11.2011 passed by this Hon'ble Court, the
administration of the temple has been carried on by the
appellants, the Kamakhya Debuttar Board. Further, the
two Dolois has been given exclusive monopoly in
religious affairs by th.is Hon'ble Court vide its order dated
21.11.2011. Thus as stated above, Section 25A of the
said Act is confined to "control over the matter of utilization
of annuity and verification of proper maintenance of the
institution." The interpretation of Section 25 of the Act is
not in issue here.