BRIJESH KUMAR, CJ
(1.) Civil Rule No. 3118 of 1994 has been filed on behalf of the Satradhikar of Bengana-ati Satra, P.O. Majuli, District Jorhat, impugning the vires of Section 25A of the Assam State Acquisition of Lands belonging to Religious or Charitable Institutions of Public Nature Act, 1959 (Assam Act DC of 1961) (hereinafter to be referred to as the Act). The offending provision provides for constitution of a committee to have control over the matter of utilisation of the annuity and verification of the proper maintenance of the institution. Section 25A of the Act has been inserted by means of Assam Act No. XIX of 1987. Its operation, however, remained in abeyance; but it was made effective in the year 1994, which gave rise to the grievance of the petitioners; hence, this petition.
(2.) Civil Rule No. 6221 of 1998 has been filed by some of the Dolois of Kamakhya temple. According to the averments made in the petition, the petitioners are engaged in the management of the affairs and administration of the temple and they are aggrieved by an order dated 21.10.98 passed by the District Judge, Kamrup, Guwahati, on the application said to be moved by the Bardeuri Samaj of the Kamakhya temple. The learned District Judge by means of the impugned order has provided that the Deputy Commissioner, Kamrup, Guwahati shall constitute a committee, either under Section 25-A of the Act by dissolving the existing committee, or to constitute an Ad-hoc Committee from the members of the Bardeuri Samaj for proper management of the affairs of the duties within a month from the date of the order. The Committee was to function till regular election was held after disposal of the Public Interest Litigation petition pending before the High Court. The jurisdiction of the District Judge to pass the order has also been challenged. This petition was also ordered to be heard along with Civil Rule No. 3118 of 1994.
(3.) We have heard Shri K.P. Pathak, learned counsel appearing for the petitioner in Civil Rule No. 3118 of 1994, and Shri B.K. Goswami and Shri S. Medhi, learned counsel appearing on behalf of the intervenors. Shri N. Dutta, learned counsel appeared for the petitioners in civil rule no. 6221 of 1998. Shri P.G. Baruah, learned Advocate General, Assam, appeared for the respondents. We would take up Civil Rule No. 3118 of 1994 as the leading petition as the fate of Civil Rule No. 6221 of 1998 will depend upon the decision in that petition.
(4.) The vires of Section 25 A of the Act has been challenged on the ground of infringement of rights vested in the petitioners under Articles 25, 26 and 300A of the Constitution, as Section 25 A, inserted by Amendment Act of 1987 (Assam Act No. XIX of 1987), hurts the religious sentiments of the Bhaktas of different Satras and offends their freedom to exercise their religious rites and curtails the right to manage its property. According to the petitioner, namely, the Satradhikar of Benganaati Satra in Majuli, District Jorhat, the said Satra was granted about 20,000 Bighas of land by the Ahom Kings of Assam, free of revenue. Such grants of land were made by the Ahom Kings in favour of several Maths, Temples and Satras for religious and related purposes. It is submitted that there are a number of Satras propagating Vaishnavite Hindu religion in Assam. In this connection, learned counsel for the petitioner has referred to certain books on the subject, namely, "The Neo-Vaishnavite Movement and the Satra Institution of Assam", (1966), by S.N. Sarma, MA, D. Phil, Secretory, University Classes, Gauhati University, more particularly, Chapter V of the book, titled "The Nature, Origin and Development of the Satra Institution". Satra institution is described as one of tbs special feature of Assam Vaishnavism. A Satra consists of a Namghar, a Manikuta, a Batchara and two of four rows of Hatis. Namaghara is described as a large hall which serves the purpose of a prayer hall as well as a hall for holding religious meetings and discussion. Manikuta is described as the actual shrine where the idol of the deity or the sacred scripture is kept. It is considered to be the sanctum sanctorium of the Satra establishment. Some Satras also have Padasila-ghar, that is, a house adjacent to the Manikuta, containing the foot-impressions or footwears of some early saints or religious heads. Batchora, or Karapat, is a small open house at the entrance of a Satra, which serves as the gate-house. Surrounding the Manikuta and the Namghara, two or four rows of huts are constructed for residential purposes of the devotees. These are known as Hatis. The book describes in details about the Bhaktas an other activities of the Satra and it is observed that-
"The Satra institution is thus a religious community having three parties and having a definite location with certain structural characteristics." (P. 103)."
It is submitted that there is exposition of Bhagavata by reciting and expounding stories from the Bhagavata-purana to the followers of the Satras and Bhaktas.
(5.) The learned counsel for the petitioners then referred to the book, "Sankaradeva and His Times", (1965), (Early History of the Vaishnava Faith and Movement in Assam), by Maheswar Neog, MA, D. Phil, Jawaharlal Nehru Professor, Gauhati University, more particularly, Chapter VIII, on the topic, 'Sankaradeva's Dramatic Art and Technique", to show that from the times of Sankardeva, message of Bhakti was instilled into the hearts of the audience through songs and dances, and the energy of the dramatist was directed towards evoking a devotional fervour in the audience glorifying Kirhsna or Rama. Relying on some other chapters as well, it is submitted that Satras are religious institutions devoted to propagate Vaishnavism in Assam through different media, for example, dance, drama, discourses, religious processions, etc. The Satras has its own system of management in regard to it affairs utilizing the income derived from lands originally granted by Kings, which were later recognised by the British Government as well and the income as contributed by the disciples of the Satra. In the year 1959, the Assam State Acquisition of Lands Belonging to Religious or Charitable Institution of Public Nature Act, 1959 (Assam Act No. IX of 1961), was passed for acquiring the lands belonging to the religious or charitable institutions. The Act received the assent of the President on 2.4.1961, and it came into force with effect from 1.1.1963. By means of a notification dated 25.3.1970. issued by the Government in exercise of powers under sub-section (1) of Section 3 of the Act, as published in the name of the Governor, more than 10,738 Bighas of land of the petitioner/Satra was acquired with effect from 15.4.1970. Later on, more than 9,693 Bighas of land was acquired with effect from 15.4.1975, by notification dated 9.4.1975. Compensation in lieu of acquisition of the land was payable under the provisions of the Act. The Satra/petitioner was allowed compensation in the shape of an annuity of Rs.3,27,759/- per annum with effect from the date of acquisition of the land.
(6.) The case of the petitioner further is that after the acquisition of the land, the Satra is being managed including in its religious functions out of the annuity given by the Government on acquisiton of the land and voluntary contributions made by Bhaktas. The management of the Satra is done by the Satradhikar along with other office bearers, like, Deka Satradhikar, Boral Dhora, etc., who. collectively discharge the functions of the Satra and the amount which was being received as annunity and contributions by Bhaktas - they were only being utilized for the purposes of religious functions of the Satra. In the background of the facts briefly indicated above as given out by the petitioner, it is submitted that the Satras being religious institutions performing religious functions, their right to perform such functions are protected and cannot be interfered with in any manner. In this context, introduction of Section 25A of the Act has been challenged.
(7.) The Assam Act No. XIX of 1987 received the assent of the Governor of Assam on October 19, 1987, and was published in the Assam Gazette, Extraordinary, dated 23.10.87. By means of the aforesaid Act, the Assam State Acquisition of Lands Belonging to Religious or Charitable Institutions of Public Nature Act, 1959, (Assam Act IX of 1961) had been amended. Assam Act No. XIX of 1987 is the amending act introducing section 25a to the act. section 25a reads as under:
"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 utilisation 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."
Under the above quoted provision, a Managing Committee has been provided to be headed by the Deputy Commissioner or Sub-Divisional Officer or his nominee as President, to have a control over the matter of utilisation of the annuity and verification of proper maintenance of the institution. An Ex- Officio Secretary to be elected by the Deuries/ Bor Deuries. Five members are to be elected from amongst the devotees.
(8.) On behalf of the petitioners it is submitted that earlier the management of the Satra used to be in the hands of the Satradhikar and Deka Satradhikar and Boral Dhora, etc. This right is being taken away by providing for constitution of a Committee headed by the Deputy Commissioner or Sub-Divisional Officer, ousting the Satradhikar being the head in the affairs of management of the Satra. The Secretary also has to be an Ex-Officio Secretary, even though he is provided to be elected by the Deuries/Bor Deuries. The constitution of the Managing Committe as envisaged under Section 25A of the Act, is repugnant to the Satra system and it may also affect the religious functions which are performed by the Satras. Yet another submission which has been advanced is that the object of the principal Act was to acquire the land belonging to the religious or charitable institutions of public nature and to provide for compensation in lieu thereof. The new provision which has been introduced to exercise control over the matter of utilisation of annuity and to verify the proper maintenance of the institution, is not within the reasons and objects of the principal Act. Once the amount of compensation is paid- may be on certain intervals, in the shape of annuity or otherwise, the matter ends in so far as acquisition and compensation in lieu thereof is concerned. It would not be within the scope of the principal Act to further control the expenditure of the amount of compensation received on account of acquisition of the land. It is also submitted that the Committee may take a decision substantially raiucing the expenditure on any particular religious function, which may make it impossible to perform it in keeping with the traditions and practices existing in the Satras. It would definitely be in derogation of the fundamental rights vested in the religious institutions by virtue of Articles 25 and 26 of the Constitution of India. Yet another ground on the basis of which the validity of Section 25-A of the Act has been challenged is that it provides that the Deputy Commissioner, or Sub-Divisional Officer, or his nominee would be the President of the Committee. The case of the [petitioner is that on some occasions the Deputy Commissioner or the Sub-Divisional Officer may be a person belonging to a different community. It may not be possible for me President of any other community to properly and effectively look into the matters of a religious institution of a particular community, nor it may be possible for him to see the things in the correct and proper perspective insofar as it may relate to the performance of his duties as President of the Committee of Management of a religious institution. There is, thus, possibility of mismanagement of the affairs of a religious institution, ultimately affecting the religious functions of such an institution. On the ground indicated above, vires of Section 25A of the Act has been impugned.
(9.) An affidavit-in-opposition has teen filed rebutting the averments and the pleas raised by the petitioner challenging the validity of Section 25A of the Act. It has been averred that the President will be a Civil Servant or his nominee holding any post under the Government. He shall thus have no interest in the religion whatsoever. The functioning of the Committee of Management is confined to the effective utilisation of public funds in the form of annuity. The Committee will have nothing to do with the religious matters of the Satra. It is also stated that the Satradhikar of the Satra will continue to be the supreme in the religious matters. It is also stated that Section 25A of the Act would not be repugnant to the Satra System in Assam, nor is it the aim of the said provision to break the basic structure of the Satra system. The fact that the Ahom Kings had granted the revenue free land to the Satra, has not been denied. It is their case that being a religious institution of public nature, it would be covered by the provisions of Section 25A of the Act. In paragraph 6 of the affidavit-in- opposition, it is stated that -
"..... the objective behind the enactment of the Act is to remove the intermediaries who are enjoying much benefits as individuals in the nature by holding land of the institution and it is reported that in some cases the land belonging to the institution has been rented out for individual interest."
Such intermediary elements are sought to be removed. Hence, they are proposed to be managed jby the Managing Committee so that there may be uniform administration in all the Satras in Assam. It is further stated that the land was allotted to the Satra and not to the Satradhikar. So far the hereditary nature of Satradhikar is concerned, it is stated that it is not so in all the Satras. In some of the Satras, they are always nominated by the Bhaktas. The purpose of the impugned amendment is stated to be to ensure effective utilisation of public fund and for the welfare of the institution and to see that they are properly managed. It is also stated that where it relates to utilisation of public funds, it is usual that the Government associates one of the Civil Servants with the management. It is once again stated that the rituals and observance of mode of worship, which are regarded as integral part of the religion, are in no way affected by the provisions of the Act. The Management Committee does not interfere in the performance of religious activity of the institution.
(10.) Since the main thrust on behalf of the petitioner is about the violation of Articles 25 and 26 of the Constitution of India and since the submissions are to be considered in the background of the above noted provisions, it may be better to peruse Articles 25 and 26 of the Constitution. These Articles read as under.-
"Right to Freedom of Religion. 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, practice 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. Explanation-1 - The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explaniation-II - In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion,. and the reference to Hindu religious institutions shall be construed accordingly. 26. Freedom to manage religious affairs. - Subject to public order, morality and health, every religious denomination or any Section thereof shall have the right- (a) to establish and maintain institutions for religious, and charitable purposes; (b) to manage its own affairs in matters of religion;, (c) to own and acquire movable and immovable property, and (d)1:o administer such property in accordance with law."
The case of the petitioner that it is a religious institution or denomination practising and propagating Vaishnavite faith of Hindu religion through the medium of dance, drama, kirtan and other related activities, is neither denied nor is in dispute.
(11.) Shri K.P. Pathak, learned counsel for the petitioner has vehemently urged that the kind of control which is envisaged under Section 25 A of the Act is such that it is bound to affect the religious functions and activities of the Satra. Besides day to day expenditure, occasionally many religious functions and processions, etc. are held involving sufficient expenditure of money. If the Committee decides to drastically cut the expenditure, or may not allow it to spend any amount, the religious functions and ceremonies would be affected.
(12.) To find out as to what part of the functions of the religious institutions relate to affairs of its management and which of those are related to performance of religious ceremonies and rituals, etc, the parties have referred to certain decisions on the point and we feel that it would be necessary to consider those cases. In support of the contentions that the provisions contained under Section 25A of the Act do not affect the matters of religion of the Satras, learned counsel for the respondents placed reliance upon a decision of the Hon'ble Supreme Court, reported in AIR 1954 SC 282, The Commissioner, Hindu Religious Endowments, Madras-Vs-Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, and has particularly referred to paragraph 17 of the judgment, which reads as follows:
"It will be seen that besides Che right to manage its own affairs in matters of religion which is given by clause (b), the next two
clauses of art. 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administrative of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no Legislature can take away, whereas the former can be regulated by laws which the Legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious groups or institution are not matters of religion to which Cl. (b) of the Article applies."
It is further observed in paragraph 22 as follows:
"Our Constitution-makers, however, have embodied the limitations which have been evolved by judicial pronouncements in America or Australia in the Constitution itself and the language of Articles 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what do not. As we have already indicated freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under Art. 26(b), therefore a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. Of course, the scale of expenses to be incurred in connection with these religious observance would be a matter of administration of property belonging to the religious denomination can be controlled by secular authorities in accordance with any law laid down by a competent Legislature; for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be noticed, however, that under Art. 26(d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under
clause (d) of art. 26."
On the basis of the above observations it is submitted that the matter of religious practices is prohibited to be interfered with under Articles 25 and 26 of the Constitution, but not the other matters, for example, expenses to be incurred in connection with religious observances, etc., which is the matter of administration of property, belonging to the religious denomination and can be controlled by secular authorities in accordance with law.
(13.) The next case which has been referred to is reported in AIR 1959 SC 860, Sardar Sarup Singh and others-Vs-State of Punjab and others. Paragraph 7 of the decision is quoted below: "We are unable to accept this argument as correct. Article 26 of the Constitution, so far as it is relevant for our purpose, says-
"Art. 26. Subject to public order, morality and health, every religious denomination or any Section thereof shall have the right - (a)....... (b) to manage its own affairs in matters of religion; (c)........ (d)to administer such property in accordance with law."
The distinction between Cls. (b) and (d) strikes one at once. So far as administration of its property is concerned the right of a religious denomination is to be exercised in
"accordance with law", but there is no such qualification in Cl. (b). In the Commissioner, Hindu Religious Endowments, Madras-Vs- Sri Lakshmindra Thirtha Swamiar of Sri Shrirur Mutt, 1954 SCR 1005, at p. 1023, 1026, this distinction was pointed out by this Court and it was there observed: "The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no Legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose." Secondly, the expression used in Cl. (b) is "in matters of religion". In what sense has the ward 'religion' been used? This was considered in two decisions of this Court; 1954 SCR 1005 and Sri Venkataramana Devaru-Vs-State of Mysore 1958 SCR 895: (AIR 1958 SC 255) and it was held that freedom of religion in our Constitution is not confirmed to religious beliefs only, but extends to essential religious practices as well subject to the restrictions which the Constitution has laid down. In 1954 SCR 1005: (AIR 1954 SC 282) (supra) it was observed at p. 1026 (of SCR): (at p. 290 of AIR) that under Art. 26(b), a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold (we emphasise here the word 'essential'). The same emphasis was laid in the later decision of 1958 SCR 895: (AIR 1958 SC 255), where it was said that matters of religion in Art. 26(b) include practices which are regarded by the community as part of its religion. Two questions, therefore, arise in connection with the argument of learned counsel for the petitioners: (1) does S. 148-B added to the principal Act by the amending Act of 1959 have reference only to administration of property of Sikh Gurdwaras and, therefore, must be judged by Cl. (d) of Art. 26 or (2) does it affect 'matters of religion' within the meaning of Cl. (b) of the said Article?"
On an argument advanced in the case about the constitution of the Board, a representative body to manage the affairs by some members of the electorate who are non-Sikhs, the Court held in paragraph 12 as follows:
"With regard to the thirty-five Sikhs to be elected under Cl. (b) of sub-:s. (1) of S. 148-B, there is a three-fold contention. It has been submitted that (1) the electorate detailed in sub-s. (2) of S. 148-B is not representative of all the Sikhs; (2) some of the members of the electorate like Sikh Members of Parliament and Municipal Committees are in their turn elected by joint constituencies of Sikhs and non-Sikhs; and (3) some of the members of the electorate like Sikh Sarpanches and Sikh Naya Pradhans are in the service, and under the influence of Government. We do not agree that these considerations are determinative of the problem before us. We have already said that the method of representation to the hoard for the extended areas as in interim measure is not a matter of religion. The circumstance that some members of the electorate are in their turn elected by constituencies consisting of Sikhs and non-Sikhs is far too remote and indirect to constitute an infringement of freedom of religion. The members of the electorate itself are all Sikhs and they have to elect thirty-five Sikhs. Unless one proceeds mechanically on mere abstract considerations, there is no real basis for the contention that non-Sikhs can in any way influence the Board. We do not agree that Sikh Sarpanches and Naya Pradhans are in the service of Government or that their inclusion as members of the electorate violates the right of the Sikhs under
Article 26(b) of the Constitution. It may not be quite irrelevant to point out there: that the twelve members of the Interim Gurdwara Board, Patiala, plus thirty-five elected Sikhs from the Pepsu area will be a minority as against 132 elected members and twenty-five co-opted members of the Board."
(14.) The case reported in AIR 1961 SC 1402, Durgah Committee, Ajmer and another-Vs- Syed Hussain AH and others, has been referred by learned counsel for both the sides. The law as it relates to manage its own affairs in the matters of religion or to administer its property in accordance with law, has been explained in paragraph 33 making a clear distinction between the religious and secular activities of a religious denomination. Reliance has also been placed upon the decision in the case of Commr., Hindu Religious Endowments, Madras (supra). While considering matters, a caution is given in paragraph 33 to the following effect:
"......Whilst we are dealing with this point it may not be out of place incidentally to strike a note off caution and observe that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26. Similarly even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accreditions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other."
The challenge made to the vires of Section 5 of Durgah Khawaja Saheb Act, 1955, which related to the powers of the Committee to manage the property on the ground that it included other than Chishtia Soofies, was also negated. The case reported in (1996) 9 SCC 548, A.S. Narayana Deekshitulu-Vs-State of AP and others, has also been referred to emphasise that there would be difference between matters of religion and other matters relating tc management of property, etc. Paragraph 87 and 88, as referred to, are quoted below:
"In pluralistic society like India, as stated earlier, there are numerous religious groups who practise diverse forms of worship or practise religions rituals, rites etc., even among Hindus, different denominants and sects residing within the country or abroad profess different religious faiths, beliefs, practices. They seek to identify religion with what may in substance be mere facets of religion. It would, therefore, be difficult to devise a definition of religion which would be regarded as applicable to all religions or matters of religious practices. To one class of persons a mere dogma or precept or a doctrine may be predominant in the matter of religion; and to yet another class of persons a code of conduct or a mode of life may constitute religion. Even to different persons professing the same religious faith some of the facets of religion may have varying significance. It may not be possible, therefore, to devise a precise definition of universal application as to what is religion and what are matters of religious beliefs of religious practice. That is far from saying that it is not possible to State with reasonable certainty the limits within which the Constitution conferred a right to profess religion. Therefore, the right to religion guaranteed under Article 25 or 26 is not an absolute or unfettered right to propagating religion which is subject to legislation by the State limiting or regulating any activity - economic, financial, political or secular which are associated with religious beliefs, faith, practice or custom. They are subject to reform on social welfare by appropriate legislation by the State. Though religious practices and performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in a particular doctrine, that by itself is not conclusive or decisive. What are essential parts of religion or religious belief or matters of religion and religious practice is essentially a question of fact to be considered in the context in which the question has arisen and the evidence - factual or legislative or historic-presented in that context is required to be considered and a decision reached."
"The Court, therefore, while interpreting Articles 25 and 26 strikes a careful balance between] the freedom of the individual or the group in regard to religion, matters of religion, religious belief, faith or worship, religious practice; or custom which are essential and integral part and those which are not essential and integral and the need for the State to regulate or control in the interest of the community."
(15.) In regard to interference with the hereditary rights of Archakas or the priests who perform the religious rituals, it has been observed thus in paragraph 118, which reads as under:
"There is a distinction between religious service and the person who performs the service; performance of the religious service according to the tenets, Agamas, customs and usages prevalent in the temple etc. is an integral part of the religious faith and belief and to that extent the legislature cannot intervene to regulate it. But the service of the priest (archaka) is a secular part. As seen earlier, the right to perform religious service has appointment by the owner of the temple or king as its source. The legislature is competent to enact the law taking away the hereditary right to succeed to an office in the temple and equally to the office of the priest (archaka). The hereditary right as such is not an integral part of the religious practice but a source to secure the services of a priest independent of it. Though performance of the ritual ceremonies is an integral part of the religion, the person who performs it or associates himself with performance of ritual ceremonies, is not. Therefore, when the hereditary right to perform service in the temple is terminable by an owner for bad conduct, its abolition by sovereign [legislature is equally valid and legal. Regulation of his service conditions is sequenced to the abolition of hereditary right of succession to the office of an archaka. Though an archaka integrally associates himself with the performance of ceremonial rituals and daily pooja to the Deity, he is a holder of the office of priest (archaka) in the temple. Sio are the other office-holders or employees of the temple. In Seshammal case this Court had upheld the legislative competence to lake away the hereditary right as such."
In the case reported in (1997) 8 SCC 422, Shri Jagannath Temple Puri Management Committee-Vs-Chintamani Khuntia and others, it was held that collection and disbursement of the money given in offerings relate to management of the temple which is a secular activity, which can be regulated by State by law. Therefore, the law made by the Legislature taking away the right of Sevaks to get a share of the offerings which was recognised in the record of rights and duties of various classes of Sevaks and. others employed for or connected with sevapuja of the temple, not being a religious right would not affect the validity of the law on the ground of violation of any religious right guaranteed by Articles 25 and 26 of the Constitution. In the case reported in (1996) 2 SCC 498, Pannalal Bansilal Pitti and others- Vs-State of A.P. and another, it was held that abolition of hereditary trusteeship prospectively to effectuate the legislative object of efficient and proper administration and management of Hindu charitable and religious institutions and endowments was a matter relating to secular function and would not be violative of Article 25(1) of the Constitution. Such function could be regulated by legislation. Under the scheme appointment of trustees and constitution of Board of Trustees was upheld. In (1997) 2 SCC 745, Bhuri Nath and others-Vs-State of JandK and others, the question relating to the validity of the provisions regulating the management, administration and governance of Shri Mata Vaishno Devi Shrine and Shrine fund under jandk act 16 of 1988, extinguishing the right of Baridars to receive offerings made by pilgrims, was held to be valid. It was, however, observed in paragraph 15 that –
"The administration, management and governance of the Sharine and the Shrine Fund are vested in the Board consisting of the Chairman and nine members nominated by the Governor. The Governor is the ex-officio Chairman. In case, the Governor happens to be a non-Hindu, his nominee, who has to be an eminent person professing Hindu religion and qualified to be a member, shall be the ex- officio Chairman of the Board, obviously, to act as his substitute to preside over the Board and participate in the deliberations of the Board."
(16.) A reference may also be made to some of the other cases which have been cited by the learned counsel for the parties. Learned counsel for the petitioners referred to AIR 1998 Madras 76, Sri Vedantha Sthapana Sabha, Nanganallur-Vs-The Commissioner, Hindu Religious and Charitable Endowments (Admn.) Department and another. Sri Vedantha Sthapana Sabha, out of the collections from the members of the Sabha, founded a temple. The Sabha was registered under the Tamil Nadu Societies Registration Act. It was held that the administration of the temple is vested in the Sabha which consists of its office bearers and members of the society and, therefore, they are alone entitled to administer the temple and its properties, which are also vested with them - either as joint trustees or as co-trustees. On this basis it has been submitted that Bor Deuries are entitled to manage the affairs of the temple. It may, however, be indicated here that in the present case dispute of the kind as involved in the case of Shri Vedantha Sthapana Sabha (supra) is not involved. AIR 1940 Calcutta 269, Baroda Katna Deba Sarma Deka Brdeuri and others-Vs- Bangshi Nath Deba Sarma Bidhipathak Bardeori and others, has also been referred to. In this case it was held that any adult male person, according to the custom, is eligible for Daloiship of the Kamakhya temple, who is a member of any of the four surviving Bardeori families. But, in our view, this case also does not help the petitioners in context with the point involved in the present case. In (1999) 5 SCC 50, Ram Jankijee Deities and others- Vs-State of Bihar and others, it has been held that while usually an idol is consecrated in a temple, it does not appear to be an essential condition. The observations made in the case of Poohari Fakir Sadavarthy-Vs-Commr. H.R. and C.E., AIR 1963 SC 510, have been quoted, which reads as follows :
"A religious institution will be a temple if two conditions are satisfied. One is that it is a place of public religious worship and the other is that it is dedicated to, or is for the benefit of, or is used as of right by the Hindu community, or any Section therefore, as a place of religious worship." To constitute a temple it is enough if it is a place of public religious worship and if the people believe in its religious efficacy irrespective of the fact whether there is an idol or a structure or other paraphernalia. It is enough if the devotees or the pilgrims feel that there is same superhuman power which they should worship and invoke its blessings."
Property is held by idol or deity and it is a juridical person capable of holding property. The above observations were made in connection with a matter relating to determination of ceiling area and acquisition of surplus land under the provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961.
(17.) Shri B.K. Goswami, learned counsel, who argued the matter as an intervener, referred to AW 1922 PC 123, Vidya Varuthi Thirtha Swamigal- Vs-Baluswami Ayyar and others, to contend that Dolois and Bardeuries are not even the trustees in the strict sense. It is further submitted that Satras are juristic persons, so as the temples. Thus the property belonging to the deities, idols or temples, namely, the places of worship, would only be managed through some human agencies, by whatever name they may be called; but they would not become the owners of the property of the temple. Therefore, law can always be made to regulate the expenditure and the management of a temple or Satra.
(18.) A reference to a decision reported in AIR 1963 SC 1638, Tilkayat Shri Govindlalji Maharaj etc.-Vs-State of Rajasthan and others, was also made. The matter involved related to Nathdwara temple in Rajasthan. It was found to be a public temple. The challenge was about the provisions of Rajasthan Nathdwara. Temple Act(13 of 1959). The Tilkayats had challenged the provisions as being violative of Article 19(1)(f) of the Constitution. Their plea that it was a private temple was negated. In the alternative, it was also their case that even in case of a public: temple, the provisions offends Articles 25 and 26 of the Constitution. The Tilkayats also claimed their right to manage the property. It was held that right to manage the property of the temple is a purely secular matter. It was further held that they may even be regarded as high priests of the temple; but the position would not be similar to that of a Mahant or a Shebait. Right to have the custody of the property of a public temple or its management, or right to administer the trust property for the benefit of the beneficiaries, cannot be regarded as right to property. The provisions made under the impugned Act for proper administration of the properties of the temple was upheld. Yet another case which has been referred to is reported in AIR 1954 SC 388, Ratilal Panachand Gandhi and others-Vs-State of Bombay and others. In paragraph 13 of the judgment, it has been observed as follows :
".....Of course, the scale of expenses to be incurred in connection with these religious observances may be and is a matter of administration of property belonging to religious institutions; and if the expenses on these heads are likely to deplete the endowed properties or affect the stability of the institution, proper control can certainly be exercised by State agencies as the law provides."
(19.) From the decisions referred to above, the legal position as culled out is that Articles 25 and 26 of the Constitution ensure right to freedom of religion and guarantee the right to manage the own affairs in the matters of religion. The integral part of the religious rites and rituals and manner and mode of ceremonies as may be essential according to the tenets of the religion cannot be interfered with. The integral and the essential religious ceremonies and performance are sacrosanct and no outside authority will have legitimate power to meddle with such essential religious matters. Any action relating to the above matter by any authority, may be administrative or legislative, would be violative of clause (b) of Article 26 of the Constitution. But, at the same time, it is also clear that activities of religious denomination other than related to purely essential and integral part of the religious activities can well be regulated by law. Such activities are often described as secular activity of any religious denomination. Properties of religious denomination can be managed in accordance with law and that would be within the purview of Clause (d) of Article 26 of the Constitution. The distinction in regard to the two kinds of activities and extent of their protection from outside interference is very well countenanced by a bare perusal of clauses (b) and (d) of Article 26. In this light of the matter we find that the impugned provision, namely, Section 25A inserted in the Act by Act XIX of 1987 only provides for constitution of a Managing Committee to have control over the matter of utilisation of the annuity and verification of the proper maintenance of the institution. It then provides the manner in which the committee is to be constituted, namely, the Deputy Commissioner or the Sub-Divisional Officer or his nominee is to be the President of the Committee with an Ex-Officio Secretary to be elected by the Deuries/Bor Deuries and there would be 5 member to be elected from amongst the devotees. It would thus be a body consisting of 7 persons out of which 5 will the devotees and the other 2, namely, the President and the Secretary will be from the officers of the administration, namely, the Deputy Commissioner or the Sub-Divisional Officer or his nominee as the President, but the Ex-Officio Secretary would again be a person elected by Deuries/Bor Deuries.
(20.) The statutory function which is conferred upon such Managing Committee to have control over the matter of utilisation of annuity that is to say, it relates to financial affairs or management of the finances of the religious denomination and verification of the proper maintenance of the institution. None of the activities as assigned to the Committee relate to the performance of religious activity of the Satra. According to the respondents the objective behind the amended provisions is to remove the intermediaries who enjoy much benefits as individuals as against the interest of the institution. It is also indicated that there have been some instances where the land belonging to the institution have been rented out for individual benefits. In such circumstances, any law as enacted to have a control on the financial management of the institution would only serve the public purpose as against the individual interest of those who may be in the helms of the affairs of the religious institution. Such a pre-caution as taken, is permissible and comes clearly within the sweep of Clause (d) of Article 26 of the Constitution. Clause (2) of Article 25 of the Constitution clearly provides that nothing in Article 25 shall prevent the State from making any law regulating or restricting any economic, financial, political or secular activities which will be associated with religious practice.
(21.) Whether a particular provision affects or touches any particular religious activity being the essential and integral part or not would always be a question of fact as also observed in the case of A.S. Narayana Deekshitulu (supra). In this case, learned counsel for the petitioner could not point out any particular religious activity which may be an integral part of the religious practice which would be affected by the provisions contained in Section 25A of the Act. It has, however, been submitted that different functions, religious processions which are part of the religious activities of the Satra are performed incurring expenses as may be necessary for performing such practices. A committee of management managing the financial affairs of the institution may reduce the required expenditure to the extent that the performance of the religious rituals may get affected. It is one of the apprehension which has been indicated by the learned counsel for the petitioner. However, the fact which cannot be lost sight of is that out of the 7 members of the committee of management, 5 have to be from amongst the devotees and besides that the Secretary, though Ex-Officio, would also be elected by the Deuries/Bor Deuries. With such a composition of a Managing Committee to oversee the financial affairs of the institution, the chances of apprehension coming true are too remote so as to render the provision as contained in Section 25A of the Act as invalid and unconstitutional being violative of the provisions of Articles 25 and 26 of the Constitution. In no other manner it has been suggested that the functioning of the Managing Committee would come in conflict with the performance of religious rituals and practices of the institution. The activity which is to be regulated by the Committee of Management constituted under Section 25A of the Act would be only secular activity. As a matter of fact, it has been observed by the Hon'ble Supreme Court in the case of the Commissioner, Hindu Religious Endowments, Madras (supra) that the scale of expenses to be incurred. in connection with religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent Legislature. According to the observations made, it would be permissible to check any wasteful expenditure which may even destroy the institution and its endowments. Besides five members from amongst the Bhaktas, the Ex-Officio Secretary is to be elected by none else but by the Deuries/Bor Deuries. The Committee, no doubt, though would be headed by a civil servant, namely, the Deputy Commissioner or the Sub-Divisional Officer or his nominee, such a committee cannot perhaps be considered to be an absolutely outside authority. As a matter of fact, such an aspect was dealt in one of the decisions of the Hon'ble Supreme Court, namely, Sardar Sarup Singh (supra) and it was observed that 35 Sikhs to be elected from the electorate which in turn was elected by nonh-Sikhs and civil servants also, would in no manner have adverse effect as against 132 elected members and 25 co-opted members of the Board.
(22.) The next contention raised on behalf of the petitioner to challenge the provision is that the Deputy Commissioner or the Sub-Divisional Officer or his nominee shall be the President and there may come an occasion where a member of other community may hold such office. In support of the above argument, reliance has been placed on a decission of the Supreme Court in the case of Bhuri Nath (supra). In the said case the provisions of the Act extinguishing the right of Baridars to receive offerings made by pilgrims in the temple of Shri Mata Vaishno Devi was upheld. However, as to the objection about the Governor being Ex-Officio Chairman of the Committee who at some time may be a non-Hindu , it was observed that the nominee of the Governor who has to be an eminent person of Hindu religion would be an Ex-Officio Chairman of the Board who would preside over the Board and participate in the deliberations, hence the objection was not accepted. It may be noticed that according to the provisions of that Act, the Board is to consist of 9 members nominated by the Governor. In the present case we find that subsection (1) of section 25a is quite wide in its scope and care has very well been taken to meet such a situation. In case the Deputy Commissioner ever belongs to any other community, the S.D.O. may become the President. Even if both, some time happen to be of different communities still there is a scope of having yet another person as may be nominated to act as the President. The provision is not rigid and inflexible. It can very well be worked out in a manner to avoid any such situation where the Ex-Officio holders of the office may belong to any other community. It will also not be out of place to mention here that the Ex-Officio President is a civil servant who is supposed to head a committee relating to secular activities touching financial affairs of a religious denomination. The Committee has no say in regard to the essential and integral part of the religious activities and their performance and observances. Out of 7, 5 devotees of the religious denomination would be there as members with an Ex-Officio Secretary to be elected by Deuries/Bor Deuries. In the above circumstances, in our view, the provision is quite workable to meet out different situation without there being any rigidity. Hence, it would be difficult to hold that Section 25 A of the Act violates the mandate of Articles 25 and 26 of the Constitution of India.
(23.) The petitioner claims hereditary interest in the management of the affairs of the Satra. There is no dispute about the fact that the Benganaati Satra is a religious institution/denomination of public nature which is very well borne out from the averments made by the petitioner himself that initially Ahom Kings had allotted certain land for establishment of temples and satras, etc. free of revenue for religious purposes, etc. On the own showing of the petitioner, the management and administration of the Satra is being run by the Satradhikar jointly and collectively with other office bearers like Deka Satradhikar, Boral Dhora, etc. The Satra runs on the amount of annuity and other contributions and offerings made by the public. It is also not in dispute that the Satra is open to the public. Religious functions and ceremonies etc. are held for propagation of Hindu Vaishnavite religion and also through several mediums like Kirtan, Dance and Drama, etc. In paragraph 22 of the writ petition it is stated that the Satradhikar having a hereditary interest in the right of management of the Satra, the same could not be divested by virtue of Section 25A as it would be violative of Article 300A of the Constitution. Admittedly the land allotted by the Ahom Kings for the purposes of propagating Hindu Vaishnavite religion through Satra has already been acquired. Compensation has been awarded and was being paid in the shape of annuity. The amount of annuity as well as the amount of offerings and contributions from the public all were being utilised for propagating Hindu Vaishnavite religion. Public nature of the institution is evident on the face of it. The impugned provision is only with regard to the management of the financial affairs of the Satra. The amount is used for the public religious institution. In such matters the State Government can very well make statutory provisions for managing the property and expenditure etc. of such institutions. Even hereditary rights of any kind can also be brought to an end by legislation as would also be evident from the case of A.S. Narayana Deekshitulu (supra) where hereditary right to perform the Puja was taken away by legislation. In a public religious institution, regulatory provisions for proper utilisation and to check wasteful expenditure would lawfully be permissible. Whatever rights the petitioner may have in regard to discharge of duties in running the Satra, in so far it relate to utilisation of annuity and verification of maintenance of
(24.) Before concluding the judgment we feel it appropriate to refer to two other legal arguments advanced by the learned counsel for the parties. They, however, need not detain us long. Shri P.G. Baruah, learned Advocate General for the State of Assam has submitted that the Assam State Acquisition of lands belonging to Religious or Charitable Institution of Public Nature Act, 1959 has been included in the IXth Schedule to the Constitution of India. Therefore, it will not be open for the petitioner to challenge the vires and validity of any provision of the Act. In reply, Shri K.P. Pathak, learned counsel for the petitioner has submitted that it is no doubt true that the Act has been placed in the IXth Schedule of the Constitution of India, but the Amending Act No. XIX of 1987 has not been included in the Schedule. He has taken us through the Schedule to indicate that wherever it is intended to protect an amendment as well, such amending Act is also included or placed in the IXth Schedule. Many amending Acts are mentioned in the IXth schedule, but not the Amending Act XIX of 1987 introducing Section 25A to the Act. We find that the submission made on behalf of the petitioner is fortified by the view taken in the decisions of the Apex Court, reported in AIR 1959 SC 459 (Sri Ram-Vs-State of Bombay), AIR 1969 SC 168 (Ramanlal-Vs-State of Gujarat) and (1992) 2 SCC 364 (Kunjukutty-Vs-State of Kerala) as well as (1969) 2 SCC 334 (State of Orissa-Vs-Chadrasekhar). If a provision is amended or added in the statute after the statute was brought in the IXth Schedule, that would not have the protection under Article 31 B of the Constitution unless such subsequent amendment is also protected by placing it is the Schedule. The protective umbrella founded on Article 31B of the Constitution of India is confined or limited to the provisions of the statute as it exists on the date the Act in question is incorporated in the IXth Schedule. The safeguard provided by Article 31B is extended to the Act including the amendments thereof till the date of its inclusion in the IXth Schedule, but it shall not be applicable to the amendments made to the statute after the date of incorporation in IXth Schedule. The reason is obvious. The specification of an Act in IXth Schedule can be brought in by way of an amendment of the Constitution. The amendment of the Constitution tis a constituent power entrusted to the Parliament by Article 368 of the Constitution of India in accordance with the procedure laid down in the Article. A limited power of amending the Constitution is conferred only upon the Parliament in accordance with the procedure laid down, namely, by the prescribed majority in each House of the Parliament. The prescribed majority in each House is to decide whether a particular statute should be introduced in the IXth Schedule in its entirety or in its part. Such exercise can only be undertaken by the majority in each House only upon review/examination of the statute. The State Legislature is not conferred with the power to amend the Constitution so as to enlarge the extent and content of the IXth Schedule.
(25.) The other submission which was advanced on behalf of the petitioner is that the Act of 1959 having received the assent of the President, the impugned amendment should also have been reserved for the assent of the President, failing which it is ineffective and invalid. In connection with this submission, suffice it to observe that so far legislative competence of the State Legislature to legislate on the subject is concerned, it has not been challenged before us; nor it has been shown that the amended provision is inconsistent or repugnant to any existing provision of the Act. In absence of any repugnancy between the amended provisions and the existing provisions of the Act of 1959, in our view, it was not at all required to have the amendment reserved for the assent of the President. It is not necessary that all amendments made by the State Legislature in the Act - the Act having received assent of the President - should also be necessarily assented to by the President. The extent of laws to be made by the Parliament and the Legislature of the State is indicated in Article 245 of the Constitution of India. The distribution of legislative power in the Union and the State is made in the three lists of the Seventh Schedule. The Union List covers the subjects over which the Union shall have exclusive powers of legislation. The State List comprehends subjects/entries over which the State Legislature has exclusive power of legislation. List III provides a concurrent power to the Union as well as on the State Legislature. Article 246 speaks of the distribution of legislative power between the Parliament and the State Legislature in reference to the different Lists in the Seventh Schedule. The Union Parliament has full and exclusive power to legislate with respect to matters in List I and has also power to legislate with respect to matters in List III. The State Legislature has exclusive power to legislate in respect to matters in List II sans matters included in List I and has concurrent power with respect to matters enjoined in List III. The Parliament as well as the State Legislature have contemporaneous power with respect to subjects mentioned in List III. The State Legislature therefore, has also full powers to legislate regarding the subjects enumerated in List in subject to the limitation imposed by Clause (2) of Article 254, so that, State Act does not collide with the Central Act on the subject. There is no constitutional embargo in amending an Act that received the assent of the President, by the State Legislature. Whether a bill within the legislative competence of the State is to be assented or withheld or to reserve the same for the consideration of the President, is left to the discretion of the Governor of the State, subject to the exception indicated in the Constitution. No such requirement of the assent of the president in the matter of amendment of the statute, as argued by the learned counsel, is discernible from the scheme of the Constitution. This argument thus also fails.
(26.) In view of the discussions held above, the impugned provision is well within the pale of Clause (d) of Article 26 of the Constitution and it in no way offends the right guaranteed under clause (b) of Article 26 of the Constitution.
(27.) So far the other writ petition is concerned, that has been filed, as indicated earlier, by some of the Dolois of the Kamakhya temple. We have heard Shri N. Dutta, learned counsel for the petitioners in the case. As a matter of fact, the provisions of the amended Section 25A of the Act have not been impugned in the writ petition, rather it is submitted that there are no instructions to challenge the provisions; the jurisdiction of the District Judge, however, has been challenged in passing the order impugned in the petition, namely, the order dated 21.10.98, on the application moved by the Bardeuri Samaj of the Kamakhya temple, pertaining to the arrangement made for the management of the temple by the said order. The learned District Judge has provided that the Deputy Commissioner, Kamrup, would constitute a Comittee, either under Section 25A of the Act by dissolving the existing Committee or to constitute an ad-hoc Committee from the members of the Bardeuri Samaj for proper management of the affairs of the deities. The Committee so constituted was to function till the regular election was held after the disposal of the Public Interest Litigation pending before the High Court. As a matter of fact, it was a dispute going on between the Dolois and Bardeuries of Kamakhya temple, Shri N. Dutta confines his submission to the effect that the District Judge had no jurisdiction to entertain any such application moved by the Bardeuries, more particularly, when no other proceeding or suit is pending before the District Judge, In passing the impugned order what kind of jurisdiction has been exercised by the District Judge could not be indicated by either side. On the other hand, Shri S. Medhi, Advocate submitted that such applications had been moved from time to time before the District Judge and on some occasions such applications had even been moved by the Dolois of Kamakhya temple. We had also called for the records from the Court of the District Judge. It does not appear that the application may have been moved in any pending litigation. At the same time it also appears that from time to time they have been approaching the Court of the District Judge for making arrangement or constituting Committee to manage the affairs of the Kamakhya temple. It is thus clear that the order impugned by the petitioners is not relatable to any pending proceeding before the District Judge. However, it may not be accessary to go into further details in the said matter since the decision in Civil Rule No. 3118/94 in which vires of Section 25A of the Act has been challenged, would also resolve the controversy between the parties. Learned counsel for the petitioners also made submission to the same effect that in that event, nothing; more would be required to be decided. Since Section 25 A of the Act has been held to be valid, the Committee in Kamakhya temple would obviously be constituted accordingly.
(28.) In the result, Civil Rule No. 3118 of 1994 is dismissed and in that view of the matter, the Civil Rule No. 6221 of 1998 is rendered infructuous; it is also dismissed as such. Costs easy.