WA 311/2004 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE H. BARUAH JUDGMENT & ORDER (CAV) Amitava Roy, J This adjudicative pursuit beholds a triangular orientation of co mpeting assertions centering around the centuries old religious institution ador ned by the globally reverred deity, Shri Shri Maa Kamakhya nestled in the verdan t Nilachal Hills overseeing the mighty river Brahmaputra from its southern bank. The aforementioned appeals mount a challenge to the judgment and order dated 6. 8.2004 rendered in WP(C) No. 5385/2000 along with WP(C) Nos. 6184/2000 and 2955/ 2002. The deity as well has been made to figure in the legal wrangle encompassed in WP(C) 935/2005 in a bid to nullify the provisions of the Assam State Acquisi tion of Lands Belonging to Religions or Charitable Institutions of Public Nature Act, 1959 (for short, hereinafter referred to as ’the Act’) with its amendment in the year 1987 integrating Section 25A thereto. The constitutional validity of this enactment as a whole has been impeached. 2. Whereas the appellant in W.A. No. 311/2004 was the writ petition er in WP(C) No. 5385/2000 representing himself to be an administrator of the Kam akhya Debutter (hereinafter also referred to as the Kamakhya Debutter Board/ Bo ard ), one Sri Kamal Chandra Sarma [petitioner No.1 in WP(C) 6184/2000] designat ing himself to be Chairman of the Board has lifted the cudgel against the aforem entioned decision in W.A. No. 312/2004. In view of their interpositions, the pet itioners(s)/ appellant(s) have been referred to hereinafter in the alternative. 3. We have heard Mr. DK Mishra, Senior Advocate assisted by Ms. S J ahan, Advocate for the petitioner in WP(C) No. 935/2005 as well as for the appel lant in W.A. No. 312/2004; Mr AK Bhattacharjee, Senior Advocate assisted by Mr S Sarma, Advocate for the appellants in W.A. No. 311/2004; Mr AC Buragohain, Addl . Advocate General, Assam and Mr PS Deka, learned Govt. Advocate, Assam for the State respondents as well as Mr BC Das, Senior Advocate; Mr P Pathak, Senior Adv ocate, Mr. C.K. Sarma Baruah (since deceased) assisted by Mr S Shyam and Mr B Sa rma, Advocates for the private respondents. 4. Before being enmeshed in the contentious pleadings, expedient it would be to briefly trace the overwhelming and phenomenal historical background of the hallowed site of international repute presided over for the time immemor ial by the omnipotent deity Shri Shri Kamakhya. The factual backdrop is unquesti oned and finds a felicitous and explorative narration in the judgment dated 25.2 .1931 passed by the Special Sub Judge, Assam Valley Districts at Guwahati in Tit le Suit No. 45 of 1927. A skeletal reproduction therefrom with this acknowledgem ent would suffice the present endeavour. 5. From time immemorial their existed a pitha or jyonimudra (sacred sign/ emblem) of Goddess Shri Durga venerably known as Shri Kamakhya in the Nil achal Hills situated on the south bank of river Brahmaputra in the State of Assa m. With this shrine as the principal deity, several other subsidiary pithas or s hrines surfaced around it being located all over the aforenamed hill. The discov ery of these pithas or shrines had been gradual with time. Mythology traces cons truction of the temples with walls and stone stairs uphill to the engineering fe ats of King Narakasura, thus, making the location known and accessible. After th e vandalic invasion of the Kamakhya Hill by Kalapahar of Bengal, as the history testifies, the Koch Dynasty during its prime held its sway over the whole of Kam rup. It was King Naranarayana who then rebuilt the Kamakhya Temple and introduce d a regular scheme of worship, thus, streamlining the then prevailing disorderly state of affairs. With the emergence of the Ahom regime, five upper districts i n the Brahmaputra Valley including Kamrup with the Nilachal Hills came under its rule. Since then till the advent of British in Assam in 1826, the Ahom Kings c ontrolled and supervised all the affairs of the Kamakya Institution which had de veloped into a Tirtha-a supreme site of divine abode and acknowledged as a Gover nment institution. It constituted a public religious endowment with all properti es appertaining to it to be held in trust. Teeming masses principally professin g Hindu religion thronged the site for divine audience and making devotional off erings in the shape of Pranamees (fee), Naibaidya, Bhogh (cooked rice), fruits, sweets, clothes, ornaments, utensils etc. 6. History records that the Ahom Kings, their officers and agents c onstructed and repaired, to meet the growing exigencies, the main temple of Kama khya and other subordinate temples and distributed vast stretches of immovable p roperties to ensure regular supply of all requisites for worship. Large number o f Brahmins for higher religious services and non-Brahim Paiks for secondary/ sub ordinate services were also detailed. These Brahmin and non-Brahmin contingents comprised of Shebaits of this religious denomination. Whereas the Brahmin Shebai ts for eliciting their services were separately granted land and other propertie s which devolved on their descendants, provision for maintenance of the non-Brah mins Shebaits out of the daily Bhoga (cooked offerings) in the temple and Naibad yas was made and in many cases separate endowments of land for enjoyment in lieu of the wages for the services to be rendered by them in the temples were accord ed as well. Eventually the Brahmin donees held these lands as Brahmottar and Nis f Khiraj lands and the Paik donee families as Nisf Khiraj lands separately. 7. In addition, the Ahom kings used to appoint persons known as Seb a Choloas for supervising the worship and other affairs relating to the temple a nd also for managing their properties. They, however, had no role in the interna l management of the temples and the institution which rested in the principal fa milies of priests generally known as Burpujaris, Bordeuris or Pandas. Though Seb a Choloas continued to function as such for some time, the principal families of priests called Bordeuris gradually rose in prominence and ultimately became the accepted governors of the trusts. 8. The traditional practice among the Bordeuris was to elect one of them as a Doloi whose duty was to supervise the religious rites and the customa ry tenets in the temple. 9. With the adoption of the policy of non-interference with the Hin du religious institutions by the British, the Seba Choloas were superceded and t he management of the affairs of the conglomerate of the divine institutions, bot h religious and secular, were left to the Dolois thereof who enjoyed the undispu ted confidence of the Shebaits called the Bordeuris. This marked the supremacy o f the Dolois as the manager of the trusts and endowments and they transacted all business on behalf of the temple under the Bordeuris, conceptually construed an d styled as the Board of Trustees. In the above capacity, the Dolois inter alia used to lease out lands, conduct suits and perform all necessary acts on behalf of the temple. This arrangement sought to drive a wedge amongst the Shebaits as those who were not Bordeuris felt alienated from the realm of management of the temples. The simmering discontentment snowballed with time precipitating in conf rontative dispositions and spate of litigations. The proceedings in hand testify the flashpoint of the lingering stand off. 10. Having scripted the historical backdrop of the Devalayas, the pl eadings on record with the rival projections as essential to address the issues raised need be noticed. The constitutional validity of Section 25A of the Act ha d since been assailed before this Court in Civil Rule No. 3118/94 which, however , was negated by the judgment and order dated 2.5.2000. In terms thereof, the De puty Commissioner, Kamrup, Guwahati passed an order dated 15.9.2000 constituting an ad-hoc Managing Committee under the above statutory provision. This order wa s impugned in W.P.(C) Nos. 5385/2000 and 6184/2000 by Sri Riju Prasad Sarma intr oducing himself to be the administrator and a member of the Board of Trustees of the Kamakha Debutter and Sri Kamal Chandra Sarma also in the capacity of a memb er of the said entity. Interim orders were passed in the said proceedings author izing the Deputy Commissioner, Kamrup or his nominee, as the case may be, to dis charge the functions of the Managing Committee to be constituted under Section 2 5 A of the Act to have control over the matter of utilization of the annuity and verification of the proper maintenance of the institution till a regular Commit tee thereunder was formed. In compliance of such interim orders, the Deputy Comm issioner, Kamrup by his order dated 20.3.2002 appointed Sri S.K. Roy, Additional Deputy Commissioner, Kamrup to discharge the functions of the Managing Committe e. The aforenamed nominee, in turn, issued a notice proclaiming that the respons ibility of the Managing Committee of Kamakhya Devalaya would be taken over on an d from 26.4.2002. The fact of taking over such responsibility as notified was th ereafter conveyed by the notice dated 6.5.2002 by the nominee. 11. The orders dated 20.3.2002, 25.4.2002 and 6.5.2002 were impeache d in WP(C) No. 2955/2002 instituted by Sri Riju Prasad Sarma as above. This Cour t by order dated 13.5.2002 passed in WP(C) No. 2955/2002 directed that the respo ndents would not use the main ’Bharal’ and the existing office of the Kamakhya D ebutter Board and further restrained them from interfering with the functioning of the sacred ’Peethas’ of Jol Kuber and Dhan Kuber and ’all religious functions of the Kamakhya Temple’. By the judgment and order dated 6.8.2004 impugned in W .A. Nos. 311 and 312 of 2004, the learned Single Judge while disapproving the a rrangement sought to be effected by the order dated 15.9.2000, required the Stat e Government to take all follow-up steps necessary to constitute a regular Commi ttee in accordance with Section 25A of the Act within a period of three months. 12. The scheme effectuated by the interim orders dated 25.9.2000, 22 .11.2000 and 13.5.2002 passed by this Court in the above referred writ petitions were allowed to continue vis-à-vis the administration of the secular affairs of the Devalaya till a regular Committee under Section 25A of the Act was constitu ted. Sri Riju Prasad Sarma, as the administrator, Kamakhya Debutter, representin g the deity Sri Sri Maa Kamakhya, a juristic person, has by laying a challenge t o the vires of the Act as a whole principally on the ground of lack of legislat ive competence, forged a new dimension to the existing protracted polemic. The p refatory facts, though overlap as the pleadings would display, bare essentials t hereof case-wise have to be essentially laid. W.P.(C) No. 923/2005 13. The petitioner claims that the ’Peethas’ located over the Nilach al Hill including that of Goddess Sri Sri Maa Kamakhya, have since been install ed as temples whereafter those were gifted with vast tracks of immovable propert ies by the Ahom kings for the maintenance thereof and also for ensuring regular supply of all requisites for ’Sevas’ and ’Pujas’ by a number of Brahmin and non- Brahmin Shebaits for carrying out different services in connection with religiou s activities. The properties were vested in the deity Sri Sri Maa Kamakhya as a juristic person. The lands received as gifts/ endowments by the deity were ’Debu tter properties’ of the temple of the said Goddess and the services were to be r endered by a vast number of Shebaits like Pujaris comprising of the ’Buras’ and ’Dekas’, ’Hotas’, ’Chandi Pathaks’ and ’Bidhi Pathaks’ who were assigned specifi c and distinct functions. The endowment of the Kamakhya Temple comprised of 31,0 00 Bighas of Lakheraj (revenue free) land in addition to Brahmottar land settled with the Shebaits and Paiks of the temple at a rate equal to half of the revenu e rate of the Kheraj leases. According to the petitioner, the endowment also com prised of Lakheraj land in the Nilachal Hills comprising of three hills of Bhuba neswari, Kamakhya and Barah as well as Durga Sarovar comprising of an area of 25 65 Bigha, 3 Katha 19 Lechas which are revenue free. The Kamakhya temple has als o been stated to own immovable properties in the town of Guwahati measuring an a rea of 13 ‰ Lechas under Patta No. 1062 and 1 Katha, 17 Lechas under Patta No. 1 377 at Panbazar, Guwahati in the district of Kamrup. 14. The petitioner has denounced the Act as a legislation bereft of legislative competence of the State Legislature. The mandate of the Act to rende r the deity landless in purported attainment of the objectives thereof has been assailed to be beyond the purview of the State Legislature under Entry-42 of Lis t-II of the 7th Schedule to the Constitution of India. Without prejudice to this challenge, it has been asserted as well that the scheme prescribed by the Act f or the investiture of the land in the Government has not been complied with and , thus, the Notification under Section-3 thereof does not in any manner bestow t he lands in the State Government. Absolute denudation of the deity in the garb o f the impugned enactment by offering a paltry annuity without according compensa tion computed on the market value of the lands has also been contended as a grou nd to assail the process of acquisition. 15. Section 25A of the Act has been repudiated to be wholly extraneo us to the domain of the Act and visibly unconnected with the objectives thereof as recited in its preamble. This provision in particular has also been questione d for having been incorporated without prior recommendation of a fact finding co mmittee before seeking to take over the control of secular activities of a relig ious institution. That Section 25A as an integral part of the Act cannot be cons trued to be a law within the purview of Article 25(2)(a) of the Constitution of India has also been pleaded. It has been urged as well that Section 25A not bein g a part of a law enacted for the purpose of taking over the secular activities of the temple, it cannot be permitted to be invoked to interfere with the manage ment thereof. 16. The official respondents in their affidavit have, at the outset, questioned the locus standi of the petitioner to represent the deity. According to them, the Devalaya is managed and represented by the Dolois and the petition er as the administrator of Kamakhya Debutter, is not a legally recognized entity . They have averred that no organisation named Kamakahya Debutter has been recor ded as the manager of the Kamakha Devalaya in the existing land records. They ha ve averred that huge stretches of lands donated by various kings in the name of Kamakhya Devalaya were not utilized and could not be managed by the temple and, thus, remained unused and in the state of jungles. Referring to the land record s, the answering respondents have stated that out of the land acquired as a whol e, 21743 Bighas was Lakheraj, 1846 Bigha Nisf Kheraj and 1314 Kheraj. The Act ha s been endorsed to be a valid piece of legislation for land reforms and for dis tribution of land in favour of landless tenants. Asserting in favour of the legi slative competence of the State to enact the Act, the answering respondents have claimed successful implementation thereof contending that every year the State Government spends more that Rs. 50 Lakhs for payment of perpetual annuity to the concerned religious institution. That meanwhile the lands belonging to such 200 religious and charitable institutions have been acquired and distributed amongs t lakhs of tenants and landless persons has been pleaded. Tracing the power of l egislation of the enactment to Entry-18, List-II of the Schedule-7 to the Consti tution of India, the answering respondents have affirmed against imposition of u niform ceiling for all the institutions to obviate prejudicial consequences as t he land required by them would vary according to their needs. Payment of a sum o f Rs. 80,550/- at the rate of Rs. 3500/- per year by way of ad-interim compensat ion for a span of 23 years (1969-1991) has been stated. The assailment of Sectio n 25A of the Act has been sought to be warded off by falling back on the judgmen t and order dated 2.5.2000 rendered by this Court in WP(C) No. 3118/94. 17. The respondent No.5 as the representative of the Bordeuri Samaj, Kamakhya Temple has substantially echoed the stand of the official respondents. Besides challenging the locus standi of the petitioner on the ground that he is not the head of the religious institution in terms of Section 2(2) of the Act, the answering respondent has asserted that the petitioner is not recognized as a n administrator of the Kamakya Devalaya. This respondent has maintained that all the lands and grants had been settled in the name of the then Doloi Ganga Prasa d Sarma and Pran Nath Sarma who had been duly appointed as such by the Bordeoris of the Kamakya Temple. According to this respondent, the lands are not held by the deity and it has no possessory right thereon as well as is testified by the decision rendered by the Special Sub Judge, Assam Valley District dated 25.2.193 1 in Title Suit No. 45/27. The validity of the Act has been ratified by this res pondent to be in furtherance of public interest. The answering respondent has st ated that though meanwhile an amount of Rs. 80,500/- by way of ad-interim compen sation has been paid at the rate of Rs. 3500/- per year under Section-9 of the A ct, compensation in the form of perpetual annuity over the acquired area could n ot be fixed for the failure on the part of the Head of the institution to submit return in Form-’C’ as required under the Act and the Rules framed thereunder. I ncorporation of Section 25A by the amendment of the Act in 1987, according to th e respondents, has been made to strengthen the Managing Committee of the institu tion to have control over the matter of utilization of annuity and for verificat ion of proper maintenance of the institution. 18. In his reply, the petitioner has averred that though prior to th e year 1940 there used to 1/2 Dolois from amongst the family of only Bura and De ka, a new system was introduced since thereafter of appointing Dolois also from the families of Bidhipathaks and Hotas. The system continued till 1970 when it w as felt that the same was unworkable warranting a constitution to objectively re gulate the same. ’The Constitution for Management of Kamakya Temple Affairs in a Systematic Manner was formulated and eventually submitted before the learned D istrict Judge, Kamrup on 22.4.98. The petitioner has stated that on 25.10.98, a general meeting of the public comprising of Pandas, Pujaris and Purohits etc. an d other Brahmin and non-Brahmin shebaits of the temple was held in its precincts wherein a Regulation named as Kamakhya Debutter Regulation, 1998( for short, he reinafter referred to as ’the Regulation’) was adopted for establishment of a Ge neral Board for managing the affairs of all kinds of properties of the Kamakhya Devalaya. Immediately thereafter a Board was constituted to manage the affairs of Kamakhya Devalaya in terms of Article 7 of the Regulation. The petitioner sta ted that this signalled the relinquishment of the earlier system of management. He pleaded further that apart from this constitution, there existed one more cha rter of identical kind framed in or about the year 1973 which too suggested abse nce of any custom governing the affairs of the Kamakhya Temple and instead ackno wledged practices and systems of practical relevance and significance to cater t o the exigencies of time. The constitution laid before the Court as above accord ing to the petitioner, effectively remedied the uncertain and indeterminate norm s of functioning to usher in an improved system of management of the religious i nstitution. The petitioner has, therefore, underlined that with the Regulation i n place, the management of the institution is being administered in accordance w ith democratic precepts by abandoning the then existing autocratic system confin ed to the four families led by the Dolois. The existing Doloi/ Chairman of Kamak hya Debutter having expressed his inability to continue in office vide his lette r dated 4.4.99 on health ground, the charge of the office of the Kamakha Debutte r Board was handed over to Paran Ch. Sarma (since deceased) and on the demise of the intermediate Chairman, Sri Kamal Ch. Sarma was appointed as such. The petit ioner has further asserted that since thereafter the Bordeuris are not the only persons who are entitled to hold the office of the Doloi and that the other Sheb aits too are equally qualified to assume the same. Relying on the determination made by the learned Single Judge in the judgment and order dated 6.8.2004 render ed, amongst others, in WP(C) No. 5385/2000, the petitioner has contended that th e issue of his locus standi is not longer res integra, the same having been deci ded in his favour therein. The petitioner has claimed that as permitted by the l earned Single Judge, the administration of the temple is being managed and condu cted by the Board as on date. W.P.(C) No. 5385/2000 19. The writ petitioner, Sri Riju Prasad Sarma (appellant in W.A. No . 311/2004) has asseverated that being inspired by the judgment and order dated 2.5.2000 passed by this Court in C.R. Nos. 3118/94 and 6221/98, a handful of She baites belonging to only four families known as Bordeuris of Kamakhya Temple pr evailed over the Deputy Commissioner, Kamrup, Guwahati to pass the order dated 1 5.9.2000 to constitute an ad-hoc Committee in utter violation of the letter and spirit of the decision. In endorsement of the plea of untenability of the order dated 15.9.000, the writ petitioner maintained that three persons, namely, Sri S asikanta Sarma, Sri Tara Pada Sarma and Sri Jadu Nath Sarma had instituted a civ il suit against Sri Jnanada Prasad Sarma and Sri Paran Ch. Sarma relating to the charge of the management of the Kamakhya Temple which was pending in the Court of the Civil Judge (Jr. Division) No.2, Kamrup at Guwahati. 20. It was asserted as well that in view of the pendency of WP(C) No . 2531/99 in which the Deputy Commissioner, Kamrup had been impleaded as respond ent No.2 pertaining to the issue of settlement of land of the Kamakhya Temple, i t was impracticable to hand over the charge of the administration thereof to a p erson against whom a litigation was pending. According to the petitioner, the St ate authority (respondent No.2) was not authorised to dissolve the existing Mana ging Committee as sought to be done by his aforementioned order. The petitioner asserted that in fact no Managing Committee existed to be dissolved and to the contrary the affairs of the Kamakhya Temple was, at the relevant time, being man aged by the Board of Trustees constituted in accordance with the Regulation. Whi le reiterating that the perpetual annuity to be paid to the management of the Ka makhya Devalaya had neither been fixed nor released, the background in which the old system of electing Dolois by a handful of privileged Shebaites has been dis missed was reiterated. The petitioner asserted that Section 25A of the Act can b e enforced only on payment of the compensation to the religious institution conc erned as provided under Section-7 thereof. The petitioner asserted as well that the impugned order which enjoined formation of an ad-hoc committee only by the B ordeuris from amongst the entire community of Brahmins and non-Brahmins