Madras High Court
The District Collector vs P.Naveen Kumar on 13 March, 2025
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
2025:MHC:675
W.A.(MD).Nos.986 and 1261 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 30.07.2024
Pronounced on : 13.03.2025
CORAM:
THE HON'BLE MR. JUSTICE R.SURESH KUMAR
AND
THE HON'BLE MR.JUSTICE G.ARUL MURUGAN
W.A.(MD).Nos.986 and 1261 of 2024
and C.M.P.(MD).Nos.7164 and 9737 of 2024
and C.M.P.(MD).Nos.8019 and 8520 of 2024
W.A.(MD).No.986 of 2024
1. The District Collector
District Collector Office,
Karur District.
2. The Revenue Divisional Officer
Revenue Divisional Office,
Karur District.
3. The Tahsildar
Taluk Office,
Manmangalam Taluk,
Karur District. ... Appellants
Vs.
1. P.Naveen Kumar
2. Nerur Sathguru Sathasiva Brammediral Sabha
Rep. by its President,
S.Ramesh,
S/o. D.Sundaresan,
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W.A.(MD).Nos.986 and 1261 of 2024
Agraharam, Nerur,
Manmangalam Taluk,
Karur District - 639 004.
3. The Superintendent of Police
Karur District.
4. The Inspector of Police
Vangal Police Station,
Karur District. ... Respondents
Prayer : Writ Appeal filed under Clause 15 of the Letters Patent to set aside
the order dated 17.05.2024 passed in W.P.(MD).No.10496 of 2024.
W.P.(MD).No.1261 of 2024
V.Aranganathan ... Appellant
Vs.
1. P.Naveen Kumar
2. The District Collector
District Collector Office
Karur District.
3. The Revenue Divisional Officer
Revenue Divisional Office,
Karur District.
4. The Tahsildar
Taluk Office, Manmangalam Taluk,
Karur District.
5. Nerur Sathguru Sathasiva
Brammediral Sabha
Rep. by its President
S.Ramesh, S/o. D.Sundaresan
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W.A.(MD).Nos.986 and 1261 of 2024
Agraharam, Nerur, Manmangalam Taluk,
Karur District - 639 004.
6. The Superintendent of Police
Office of Superintendent of Police,
Karur District.
7. The Inspector of Police
Vanagal Police Station,
Karur District. .... Respondents
Prayer : Writ Appeal filed under Clause 15 of the Letters Patent to set aside
the order dated 17.05.2024 passed in W.P.(MD).No.10496 of 2024.
For Appellants : Mr.N.R.Elango
Senior Counsel assisted
by Mr.P.Thilak Kumar, Govt. Pleader
in W.A.(MD).No.986 of 2024
Mr.C.Arul Vadivel @ Sekar,
Senior Counsel
for Mr.S.Vanchinathan
in W.A.(MD).No.1261 of 2024
For Respondents : Mr.G.Rajagopalan, Senior Counsel
for Mr.G.Thalaimutharasu for R1
in W.A.(MD).No.986 of 2024
Mr.Dama Seshadri Naidu, Senior Counsel
for Mr.G.Thalaimutharasu for R1
in W.A.(MD).No.1261 of 2024
Mr.K.Suresh
for R2 in W.A.(MD).No.986 of 2024
and for R5 in W.A.(MD).No.1261 of 2024
Mr.P.Thilak Kumar, Govt. Pleader
for R2 to R4
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W.A.(MD).Nos.986 and 1261 of 2024
in W.A.(MD).No.1261 of 2024
Mr.T.Senthil Kumar, APP for R3 and R4
in W.A.(MD).No.986 of 2024
and for R6 and R7
in W.A.(MD).No.1261 of 2024
Mr.R.Narayanan
in C.M.P.(MD).No.8019 of 2024
Mr.K.P.S.Palanivel Rajan, Senior Counsel
for Mr.S.Madhavan
in C.M.P.(MD).No.8520 of 2024
COMMON JUDGMENT
R.SURESH KUMAR, J.
Both the writ appeals have been filed challenging the order dated
17.05.2024 made in W.P.(MD).No.10496 of 2024. Both these writ appeals
were heard together and are disposed of by this common order.
2. The necessary facts which are required to be noticed for the
disposal of these appeals are as follows :
2.1. That one P.Naveen Kumar, S/o. Pitchai Muthu filed a writ
petition, i.e., W.P.(MD).No.10496 of 2024, who is the first respondent in
these appeals, seeking a writ of mandamus directing the respondents
therein, i.e. Respondents 1 to 3 to consider the representation of him dated
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W.A.(MD).Nos.986 and 1261 of 202422.04.2024 and grant permission to conduct Annadhanam and
Angapradakshinam, i.e., rolling over the plantain leaves left by the devotees
after the Annadhanam on 18.05.2024, i.e., on the eve of Jeeva Samadhi day
of Sri Sadhasiva Brahmendral situate at Nerur Village, Manmangalam
Taluk, Karur District.
2.2. The cause of action for filing the said writ petition, according to
the first respondent Naveen Kumar as has been averred in the affidavit filed
in support of the said writ petition, is that at the village Nerur in Karur
District, there is a Sabha called Nerur Sathguru Sadhasiva Brahmendra
Sabha. The first respondent / writ petitioner and others are strong devotees
of Sri Sadhasiva Brahmendral. The Sabha is located nearby the place where
the Sadhasiva Brahmendral has attained Jeeva Samadhi. The fourth
respondent therein Sabha was organising the Annadhanam festival during
the Jeeva Samadhi day.
2.3. As per the prevailing religious custom and practice, the
Annadhanam food will be prepared and offered Neivedhiyam to Sri
Sadhasiva Brahmendral, then the annadhanam food will be distributed to all
the devotees irrespective of any caste and religion. After the annadhanam,
the plantain leaves used by the devotees are left on the floor. Thereafter the
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W.A.(MD).Nos.986 and 1261 of 2024devotees who want to offer their Nerthikadan will roll over the said plantain
leaves. There is a strong belief behind this religious custom that Sri
Sadhasiva Brahmendral himself will eat the annadhanam along with the
devotees and rolling over such plantain leaves believed to be used by Sri
Sadhasiva Brahmendral will be a blessing for the devotees.
2.4. It was the further case of the said Naveen Kumar, the first
respondent herein that, the Annadhanam event will be held during the Tamil
month Vaigasi and on the day of Sukhla Dhasami Thithi. Until 2015, the
said religious custom was performed uninterruptedly, however during the
year 2015, the District Administration has declined to permit the said
Annadhanam by referring to an order passed by this Court in W.P.(MD).No.
7068 of 2015. Due to the non co-operation of the Sabha, the villagers could
not pursue the matters closely in the subsequent years.
2.5. It is the further case of the said Naveen Kumar that, now the
villagers and devotees together want to perform the Annadhanam on the eve
of the Jeeva Samadhi day as many devotees were not able to offer the
Nerthikadan for the last few years. Upon perusing the order passed in W.P.
(MD).No.7068 of 2015, it revealed that the order has been passed on
misrepresentation that one section of people belongs to particular
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W.A.(MD).Nos.986 and 1261 of 2024community will roll over in the plantain leaves left by the other community
people after partaking Annadhanam, but that is not correct.
2.6. It is the further case of the said Naveen Kumar, the first
respondent herein that, there has been no caste discrimination in practising
the said religious custom and the devotees in consultation with the Sabha
and villagers had scheduled to conduct Annadhanam on 18.05.2024,
therefore seeking permission to conduct such Annadhanam followed by
rolling over on plantain leaves left after partaking the meals by devotees, on
22.04.2024, the said Naveen Kumar, first respondent had given a
representation to the official respondents, i.e., the District Administration
who were respondents 1 to 3 in the said writ petition and the said
representation since had not been considered, he had approached this Court,
filed the said writ petition, i.e., W.P.(MD).No.10496 of 2024, seeking for a
writ of mandamus as stated herein above.
2.7. The said writ petition was filed on 25.04.2024 and came up for
hearing on 29.04.2024 which was directed to be listed on 30.04.2024. On
30.04.2024, the writ court after suo motu impleading the Superintendent of
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W.A.(MD).Nos.986 and 1261 of 2024
Police, Karur District and the Inspector of Police, Vangal Police Station,
Karur District, who were represented by the Additional Government Pleader
who took notice for the impleading respondents and reserved orders on
30.04.2024. Thereafter on 17.05.2024, orders were pronounced in the said
writ petition, where the writ petition was allowed by restraining the
respondents 1 to 3, i.e., the District Collector, District Revenue Officer of
Karur District as well as the Tahsildar, Manmangalam Taluk, Karur District
from interfering with the conduct of the petition mentioned event, i.e., the
Annadhanam followed by rolling over the left over plantain leaves after
partaking meals by the devotees at or nearer to the Sri Sadhasiva
Brahmendral Jeeva Samadhi’s place at Nerur, Karur District.
2.8. Aggrieved over the said order passed by the writ court, dated
17.05.2024, the District Administration headed by the District Collector
along with the Revenue Divisional Officer, Karur District and the
Tahsildar,Manmangalam Taluk, Karur District had filed writ appeal in W.A.
(MD).No.986 of 2024.
2.9. One V.Aranganathan after getting leave from this Court as a third
party has filed W.A.(MD).No.1261 of 2024 challenging the order dated
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W.A.(MD).Nos.986 and 1261 of 2024
17.05.2024. That is how these writ appeals came together for hearing and
are being disposed of now.
3. It is the main contention on the part of the appellants that the writ
petition ought not to have been entertained by the writ court, for the reason
that, the issue has already been heard, decided and concluded by the
decision of a Division Bench of this Court in W.P.(MD).No.7068 of 2015
filed by one V.Dalit Pandiyan, where the Chief Secretary, Govt. of Tamil
Nadu, District Collector, Revenue Divisional Officer, Superintendent of
Police, Karur District, Tahsildar, Manmangalam Taluk, Karur District,
Inspector of Police, Vangal Police Station, Karur District were the
respondents, which was disposed by a Division Bench of this Court on
28.04.2015. In the said writ petition filed by the said V.Dalit Pandiyan, the
prayer sought for was a writ of mandamus, directing the respondents therein
to protect right to dignified life by stopping inhuman practice of rolling over
on used plantain leaves left by Brahmins after their meal all over the State
of Tamil Nadu.
4. The said writ petition was heard by a Division Bench as a Public
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W.A.(MD).Nos.986 and 1261 of 2024
Interest Litigation, where it was brought to the notice of the Division Bench
that, a similar issue had already been taken to the Hon’ble Supreme Court
arising from the High Court of Karnataka in the matter of State of Karnataka
and others v. Adivasi Budakattu Hitarakshana Vedike Karnataka and others
in Special Leave Petition (C) No.33137 of 2014, where the Hon’ble Apex
Court by order dated 12.12.2014 has stayed a 500 years old ritual of “urulu
seve” and “made snana” being performed at Kukke Subramanya Temple in
Sullia Taluk of Dakshina Kannada District.
5. Having taken note of the said interim order of stay granted by the
Hon’ble Supreme Court staying the similar practice which was prevailing in
Kukke Subramanya Temple in Dakshina Kannada District for more than
500 years by the orders of the Hon’ble Supreme Court dated 12.12.2014, the
Division Bench having taken note of the said order and also after hearing
the parties to the writ petition, i.e., the District Administration, Police
Administration as well as the Revenue Administration and the petitioner
therein has passed the following order :
” 10.We are conscious of the fact that in so far as religious
practices and custom, Court has got its own limitations. But,10/128
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W.A.(MD).Nos.986 and 1261 of 2024such religious practice and custom should (not) affect the
dignity of life, which is guaranteed under Article 21 of the
Constitution of India. It is the heart and soul of the
Constitution. No human being can be allowed to be degraded,
by following any practice or custom in the name of religion,
which may infringe Articles 14 and 21 of the Constitution of
India. Right to live, with dignity, is the paramount object of the
Constitution.
11.Looking from that angle, though it is contended by the
learned Special Government Pleader that irrespective of
community, caste, etc, devotees, for fulfilment of their prayers,
decide on their own volition, to roll over on the left over
plantain leaves. Such religious practice or custom should be
inconsonance with Articles 14 and 21 of the Constitution of
India. Even if there is any slightest infringement to the said
rights, Court owes a duty to enforce the constitutional values
and the same should not be allowed to continue. Event of
rolling over, as per the instruction of the Collector in
Na.Ka.E2/101/2015, dated 28.04.2015 is as follows:
“",f;nfhapypy; Rkhh; 100 tUl';;fSf;F
nkyhf eilbgw;W tUk; jpUtpHhtpd; ,Wjp
epfH;r;rpahf gf;jh;fs; j';;fs;
ntz;LjYf;fhf nfhapYf;F jhprdj;jpw;F
te;Js;s gf;jh;fs; midtUk; czt[ cz;l
gpd;g[ rhg;gpl;l vr;rpy; ,iyapy; cUz;L
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W.A.(MD).Nos.986 and 1261 of 2024
m';f
; gpujl;rzk; bra;J j';fs; ntz;Ljiy
epiwntw;WtJ tHf;fk;. ,e;epfH;r;rpapy;
vt;tpjkhd rhjp rka kw;Wk;
tFg;g[ ntWghLfSk;
filgpof;fg;gLtjpy;iy/ tpHh Koe;j gpd;dh;
tpHhtpw;F Vw;ghL bra;j mf;ucwhuj;ijr;
nrh;e;j bgz;fs; j';;fshfnt
Kd;te;J ,iyapid mfw;wp mUfpYs;s
tha;f;fhypy; nghl;LtpLfpd;wdh;/
,e;epfH;r;rpapy; czt[ rikg;gJ kw;Wk;
rhg;gpl;l ,iyapid mfw;WtJ kl;Lnk
gpuhkz tFg;gpdh; Mth;. ve;j tFg;gpdh;
ntz;LkhdhYk; ntz;Ljy; bra;J bfhz;L
j';;fs; ntz;Ljiy epiwntw;w ,t;thW
rhg;gpl;l ,iyapy; cUSk; tHf;fk; cs;sJ/"
12.In the light of the above discussion and having regard to the
decision of the Hon’ble Apex Court in State of Karnataka and
others Vs. Adivasi Budakattu Hitarakshana Vedike Karnataka
and others in Special Leave Petition (C)No.33137 of 2014, we
hereby direct the respondents not to allow anyone to roll over
on the plantain leaves left, after the meal is taken.
13.Since, the above said event is stated to be conducted today
(27.04.2015), learned Special Government Pleader is directed
to communicate the order passed by this Court in this Writ
petition, through e-mail or phone, to the respondents.
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W.A.(MD).Nos.986 and 1261 of 2024
14.The Writ petition is disposed of.”
6. By the said order of the Division Bench, the practice of rolling over
on the left over plantain leaves after partaking the meals at Nerur Temple
has already been prohibited and the official respondents in the said writ
petition were directed not to allow any one to roll over on the plantain
leaves left after the meal is taken.
7. The said Division Bench order has become final as no appeal has
been made against the said order. Therefore by virtue of the said Division
Bench Order, dated 28.04.2015 which banned the practice of rolling over on
the plantain leaves left after partaking the meals at Nerur, Karur District, the
said practice has been stopped since 2015. Only at that juncture, after nine
years during the tenth year festival, which was scheduled to be conducted
on 18.05.2024, where the Annadhanam was planned, however the rolling
over on the plantain leaves since has been banned by virtue of the orders of
the Division Bench, the said Naveen Kumar as stated supra, had approached
the writ court by filing the said writ petition in W.P.(MD).No.10496 of
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W.A.(MD).Nos.986 and 1261 of 20242024.
8. Therefore it is the main contention on the part of the appellants
counsel that when the exact issue has already been decided and a quietus
have been given by a Division Bench Judgment which is operating on the
issue and it has attained finality as no appeal has been filed, after nine years,
whether the said Naveen Kumar or any other person would be entitled to
seek any contrary relief that too from the writ court consisting of a single
Bench.
9. It is their further contention that, the writ petition itself was not
maintainable before the writ court and it ought to have been dismissed in
limine in view of the decision having been made by the Division Bench by
order, dated 28.04.2015 on the same issue. Moreover the issue also has been
pending before the Hon’ble Supreme Court in the SLP, where the similar
practice adopted in Kukke Subramanya Temple in Karnataka was stayed by
the orders of the Hon’ble Supreme Court. When that being so, the writ court
absolutely had no jurisdiction to entertain the writ petition and to allow the
same through the impugned order and therefore on that ground itself, the
impugned order is liable to be set aside, they contended.
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W.A.(MD).Nos.986 and 1261 of 2024
10. Apart from this, main ground urged by the learned Senior counsel
and counsel appearing for the appellants and one of the counsel who is
appearing for one impleading party who filed the impleading petition in
support of the appellants, they have made broadly the following arguments
for consideration of this Bench.
10.1. The impugned order has been passed in violation of principles
of Judicial discipline.
10.2. The Judgment passed in W.P.(MD).No.7068 of 2015, dated
28.04.2015 is nothing but Judgment in rem and the same is conclusive to
everyone including the writ petitioner. In support of their contention, they
relied upon the Judgment of the Hon’ble Apex Court in State of Karnataka
v. All India Manufacturers Organisation reported in (2006) 4 SCC 683
stating that, in a Public Interest Litigation, the petitioner is not agitating his
individual rights but represents the public at large. As long as the litigation
is bonafide, a Judgment in a previous Public Interest Litigation would be a
Judgment in rem. It binds the public at large and bars any member of the
public from coming forward before the Court and raising any connected
issue or an issue which had been raised or should have been raised on an
earlier occasion by way of Public Interest Litigation.
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W.A.(MD).Nos.986 and 1261 of 202410.3. In the matter of State of Karnataka and others v. Adivasi
Budakattu Hitarakshana Vedike Karnataka and others in Special Leave
Petition (C) No.33137 of 2014, the Supreme Court had taken notice that
“urulu seve” and “made snana” being performed at Kukke Subramanaya
Temple in Dakshina Kannada District have been performed for five
centuries. In that performance, people roll over on the plantain leaves left
after the meal during the annual jatra of the temple, however the Hon’ble
Supreme Court taking note of the same, passed an interim order, dated
12.12.2014 staying the 500 years ritual of “urulu seve” and “made snana”.
10.4. The observation made by the writ court in the order impugned
subvert the accepted notions about the force or precedents in our system of
Judicial Administration. In support of this, they relied upon the Apex Court
decision in Tribhuvandas Purshottamdas Thakur v. Ratilal Motilal Patel
reported in 1967 SCC Online SC 123, which enunciates rules of law form
the foundation of administration of justice and our system.
10.5. It has been held time and again that a single Judge of a High
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W.A.(MD).Nos.986 and 1261 of 2024Court is ordinarily bound to accept as correct the Judgments of Courts of
coordinate jurisdiction and of Division Benches and of the Full Benches of
the Court as well as the Hon’ble Supreme Court.
10.6. The impugned Judgment of the writ court is contrary to the
principles of judicial discipline. In support of which, they relied upon the
Constitutional Bench decision of the Hon’ble Apex Court in Central Board
of Dawoodi Bohra Community and another v. State of Maharashtra and
another reported in (2005) 2 SCC 673.
10.7. On the point of Judicial discipline, they also relied upon yet
another decision of the Hon’ble Apex Court in the case of Mary Pushpam v.
Telvi Curusumary & Ors reported in 2024 LiveLaw (SC) 12 and stating that
rule of Judicial Discipline and Propriety and the Doctrine of Precedents has
a merit of promoting certainty and consistency in judicial decisions
providing assurance to individuals as to the consequences of their actions.
10.8. It is their further contention that the Hon’ble Apex Court in the
case of P.Suseela and others v. University Grants Commission and others
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W.A.(MD).Nos.986 and 1261 of 2024reported in (2015) 8 SCC 129 has held that a Division Bench Judgment of
the same High Court is binding on a subsequent Division Bench. The
subsequent Division Bench can either follow it or refer such judgment to the
Chief Justice to constitute a full Bench if it differs with it.
10.9. It is their further reference of Hon’ble Supreme Court Judgment
in the case of Official Liquidator v. Dayanand reported in (2008) 10 SCC 1,
where they relied upon the holding of the Hon’ble Supreme Court that, it has
become necessary to reiterate that disrespect to constitutional ethos and
breach of discipline have grave impact on the credibility of judicial
institution and encourages chance litigation. It must be remembered that
predictability and certainty is an important hallmark of judicial
jurisprudence developed in this country in last six decades and increase in
the frequency of conflicting judgments of the superior judiciary will do
incalculable harm to the system inasmuch as the courts at the grass root will
not be able to decide as to which of the judgment lay down the correct law
and which one should be followed.
10.10. It is their further contention that the Judgment of the Division
Bench in W.P.(MD).No.7068 of 2015 was not obtained by fraud or
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W.A.(MD).Nos.986 and 1261 of 2024misrepresentation.
10.11. Since the Judgment of the Division Bench made in W.P.
(MD).No.7068 of 2015 was declared to be null and void by the writ court
through the impugned order on the ground that, the Judgment of the
Division Bench was in violation of principles of natural justice, the ground
raised stating that the Division Bench Judgment was out of fraud and
misrepresentation is not based on any finding even by the writ court in the
order impugned itself.
10.12. It is their further contention that, at the time when the Division
Bench passed orders in W.P.(MD).No.7068 of 2015, the order of interim
stay granted by the Supreme Court in SLP (Civil) No.33137 of 2014 was
not produced may not be correct, because the Division Bench has
specifically recorded that, in SLP (Civil) No.33137 of 2014, the Supreme
Court has granted stay of the 500 years old practice at Kukke Subramanaya
Temple in Karnataka.
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W.A.(MD).Nos.986 and 1261 of 2024
10.13. It is the further contention of the learned counsels appearing
for the appellants side that, the fundamental right of any individual cannot
be waived. The human dignity is a fundamental right, in the name of
religious customs, such a fundamental right cannot be surrendered, they
contended.
10.14. It is their further contention that, Articles 25 and 26 of the
Constitution has not given any such absolute freedom to any individual or
citizen of this country to offend the fundamental right of the individual
citizen in the name of religion or religious practice. They would submit that,
the freedom of conscience and free profession, practice and propagation of
religion is only subject to public order, mortality and health and to the other
provisions of Part-III.
10.15. Here in the case in hand, there would be a health hazard if this
practice is permitted. Therefore in the name of protecting the health of the
individuals or society at large in the locality concerned, it is open to the
State, i.e., Administration to prohibit such kind of practice even though it is
intended to be propagated in the name of religious practice.
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10.16. It is also their contention that, the freedom to manage religious
affairs under Article 26 is subject to public order, morality and health. Here
in the case in hand, the Sabha cannot conduct a festival like permitting the
devotees to roll over the plantain leaves left after partaking the meal as it
would hamper the health condition of the devotees. Therefore the health
being one of the subject, subject to which the freedom to manage religious
affairs is provided or protected under Article 26 of the Constitution, such a
prohibition or restriction could very well be made by the authorities
concerned.
10.17. It is their further contention that, in the Madras High Court
Writ Rules, 2021, the Rule 17(3) makes it clear that, if a writ petition on the
criminal side is filed where the police has been impleaded as a party
respondents against whom relief also has been sought for, such writ petition
be posted and be decided by the Jurisdiction Judge who deal with criminal
matters under Section 482 of Cr.P.C.
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W.A.(MD).Nos.986 and 1261 of 2024
10.18. Here in the case in hand, on 30.04.2024, the writ court has suo
motu impleaded the Superintendent of Police and concerned Inspector of
Police as party respondents. Therefore the moment once they got impleaded,
the writ petition should have been placed before the Administrative Judge to
place it before the Judge who exercise the jurisdiction under Section 482 of
Cr.P.C. Such a procedure has not been adopted in this case, therefore it is a
clear violation of Rule 17(3) of the Madras High Court Writ Rules, they
contended.
10.19. They also contended that, the writ court ought not to have
entertained this writ petition on the other reason that, the representation
admittedly had been given only on 22.04.2024 through Registered post.
However, the writ petition was filed on 25.04.2024 without giving atleast a
small breathing time for the authorities to consider such representation.
Moreover on 30.04.2024 alone the police authorities have been suo motu
impleaded as party respondents before the writ Court. However without
giving any breathing time for such respondents impleaded by the writ court,
suo motu on the very same day, the writ petition has been reserved for
orders, by thus, absolutely no opportunity had been given to the official
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respondents who had been impleaded only on that day itself. Therefore it is
a clear case of violation of principles of natural justice on the part of the
writ court who passed the impugned order.
10.20. It is their further contention that, the practice of rolling on the
left over plantain leaves cannot seek constitutional protection guaranteed
under Articles 25 and 26 of the Constitution as it does not fall under the
ambit of religious denomination. In support of his contention, they relied
upon the decision of the Hon’ble Supreme Court in S.P.Mittal v. Union of
India reported in (1983) 1 SCC 51, where it has been held that, the words
religious denomination in Article 26 of the Constitution must take their
colour from the word “religion” and if this be so, the expression “religious
denomination” must also satisfy three conditions, namely (i) it must be a
collection of individuals who have a system of beliefs or doctrines which
they regard as conducive to their spiritual well-being, that is, a common
faith; (ii) common organisation; and (iii) designation by a distinctive name.
10.21. In the present case, none of the aforesaid criteria were fulfilled,
therefore it does not fall or constitute to be a Religious denomination nor
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the Nerur Sadhasiva Brahmendral Samathi / Temple is a denominational
temple and there is no question of applicability of the constitutional
protection under Articles 25 and 26 of the Constitution.
10.22. It is also their contention that, such a practice of rolling over
on the left over plantain leaves after partaking meal is not a essential
religious practice. In order to get such a constitutional protection, the
practice must be an essential religious practice. In support of this
contention, they relied upon the decision of the Hon’ble Supreme Court in
Commissioner of Police v. Acharya Jagdishwarananda Avadhuta reported in
(2004) 12 SCC 770.
10.23. It is their further contention that, it is not a customary practice
and if it is not a customary practice, it cannot be treated as a custom. In
support of this contention, they relied upon two decisions. (i) Mookka Kone
v. Ammakutti Ammal, AIR 1928 Mad 299 (FB) and (ii) Bhimashya and
others v. Jnabi Alias Janawwa, (2006) 13 SCC 627.
10.24. It is their further contention that, this practice of rolling over
on plantain leaves is against the constitutional morality. In support of their
contention, they relied upon the decision of the Hon’ble Supreme Court in
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Manoj Narula v. Union of India reported in (2014) 9 SCC 1 and also
Government of NCT of Delhi v. Union of India reported in (2018) 9 Scale
72.
10.25. It is their further contention that, the practice of rolling over on
the left over plantain leaves is in violation of Article 14 and 21 of the
Constitution. In support of their contention, they rely upon the following
decisions :
(i) P.T.Parmanand Katara v. Union of India and others, 1989 AIR
2039
(ii) R.S.Bharati v. The Government of Tamil Nadu and others, 2018
SCC Online Mad 2688
(iii) Indian Young Lawyers Association v. State of Kerala and others,
(2019) 11 SCC 1.
10.26. It is also their contention that, the State is obliged to curb this
kind of practice under Article 47 of the Constitution.
11. On the other hand, the learned Senior counsel and counsel
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appearing for the writ petitioner and the Sabha in support of the impugned
Judgment, have broadly made the following submissions :
11.1. That the learned counsel would state that the religious right as
provided under Article 25 and 26 of the Constitution since being the
fundamental right, it cannot be restricted or prohibited on the ground of
morality or fundamental right of the individual.
11.2. They would state that, the freedom of conscience and free
profession, practice and propogation of religion is a fundamental right under
Article 25 of the Constitution, of course subject to public order, morality
and health.
11.3. Here in the case in hand, the practice of religious owe on the left
over plantain leaves after partaking the meal does not in any way offend the
public order or morality. Even in case of the health, there is absolutely no
materials or proof to establish that taking an Angapradakshinam or rolling
over on a plantain leaves left over after partaking the meals would be a
health hazard and therefore on the ground of health also, such a religious
practice being the fundamental right guaranteed under Article 25 cannot be
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11.4. It is their further arguments that, the fourth respondent namely
the Sabha has already been maintaining the Sadhasiva Brahmendral Samathi
/ Temple and is conducting the annual festival. If we look at the life history
of Saint Sri Sadhasiva Brahmendral, there had been a considerable
followers of the saint and he had made lot of wonders during his life time.
He was a naked or half-naked sanyasi and it is a strong belief of many
number of people who are the ordanant, supporters or followers or devotees
of the said saint Sadhasiva Brahmendral that their Guru would bring good
fortunes in their life, therefore in order to fulfil their vow and prayers they
want to conduct this festival. Therefore it can easily be construed as a
separate religious denomination and hence such a religious denomination
would have the fundamental right under Article 26 to establish and maintain
institutions for religious and charitable purposes, to manage its own affairs
in matters of religion, to own and acquire movable and immovable property
and to administer such property in accordance with law.
11.5. Here in the case in hand, the devotees of Sri Sadhasiva
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Brahmendral being a religious denomination has every right to establish
such institution which they have established as a Sabha and they manage its
own affairs in matters of religion. When that being so, such a fundamental
right cannot be interfered or curtailed except under the grounds of public
order, morality and health. It is again to be stated that there could be no
issue on public order or morality and even on the ground of health, if every
part of the function is approved, the one part of the function namely, rolling
over the left over plantain leaves alone since have been prohibited or
curtailed without on any ground as stated in Article 26 of the Constitution, it
is unlawful and therefore they contended that such a fundamental right
guaranteed to the devotees under Article 25 and 26 cannot be taken away or
abrogated even by a Judicial decision.
11.6. They contended that in (1954) 1 SCC 412, in the matter of
Commr. Hindu Religious Endowments v. Lakshmindra Thirtha Swamiar of
Shri Shirur Mutt case, it has been held that, if the tenants of any religious
sect of the Hindus prescribe that offerings of food should be given to the
idol at particular hours of the day, that periodical ceremonies should be
performed in a certain way at certain periods of the year. This kind of
practices should be regarded as matters of religion within the meaning of
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11.7. They also relied upon (1954) 1 SCC 487 in the matter of Ratilal
Panachand Gandhi v. State of Bombay to state that, religious practices or
performances of acts, in pursuance of religious belief are as much apart
from religion as faith or belief in particular doctrines.
11.8. They further relied upon AIR 1963 SC 1638 in the matter of
Tilakyat Shri Govindalji Maharaj and others v. State of Rajasthan and others
by quoting that, the religious practice to which Article 25(1) refers and
affairs in matters of religion to which Article 26(b) refers include practices
which are an integral part of the religion itself and the protection
guaranteed by Article 25(1) and Article 26(b) extends to such practices.
11.9. They further relied upon AIR 1962 SC 853 in the matter of
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay and would quote
that, a person is not liable to answer for the variety of his religious views
and he cannot be questioned as to his religions beliefs by the State or any
other person.
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11.10. They further relied upon (1986) 3 SCC 615 in Bijoe
Emmanuel v. State of Kerala, quoting that, an action validly restricting the
right under Article 25 must however be based on a law having statutory
force and not on mere executive or departmental instruction.
11.11. They also relied upon the order of the writ court made in W.P.
(MD).No.16701 of 2019, dated 29.05.2020 in the matter of Arul Migu
Mahalakshmi Amman Thirukovil, Mettu Mahadhanapuram, Karur District
v. L.Subramanian and others, where they quoted that, by making such an
offer of troubling their body, they feel that they fulfilled their promise or
vow towards the God in response to the prosperity they already achieved or
the expectation towards the future prosperity which they prayed to the God.
It is further quoted from the Judgment that, if at all any individual member
of the petitioner’s association or in their community want to go out of this
performance (religious performance), the individual can take his own
decision not involve himself in such ritual which does not mean that the
entire community people or the religious denomination who come to the
temple to perform their customary rituals or poojas every year are opposing
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the move.
11.12. On the ground of misrepresentation, they relied upon (2003) 8
SCC 319 in the matter of Ram Chandra Singh v. Savitri Devi and others by
quoting that, it is also well settled that misrepresentation itself amounts to
fraud.
11.13. They further quoted (2005) 6 SCC 149 in the matter of State of
A.P. v. T.Suryachandra Rao by quoting that, fraud is a conduct either by
letter or words, which induces the other person or authority to take a
definite determinative stand as a response to the conduct of the former
either by words or letter.
11.14. They further relied upon AIR 1967 SC 1269 in the matter of
State of Orissa v. Dr.(Miss) Binapani Dei and others, quoting that, the rule
that a party to whose prejudice an order is intended to be passed is entitled
to a hearing applies alike to Judicial Tribunals and bodies of persons
invested with authority to adjudicate upon mattes involving civil
consequences.
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11.15. They further relied upon (1994) 1 SCC 1 in the matter of
S.P.Chengalvaraya Naidu (Dead) by LRs v. Jagannatha (Dead) by LRs and
others by quoting that, it is a settled preposition of law that a judgment or
decree obtained by playing fraud on the court is a nullity and nonest in the
eyes of law. Such a judgment / decree by the first court or by the Highest
Court has to be treated as a nullity by every court, whether superior or
inferior, it can be challenged in any court even in collateral proceedings.
11.16. They also relied upon (2012) 1 SCC 476 in the matter of
Union of India v. Ramesh Gandhi on the same point of misrepresentation
and fraud. They further quoted (2007) 4 SCC 221 in the matter of
A.V.Papayya Sastry v. Govt. of A.P. on the point of fraud and
misrepresentation.
11.17. On the ground that, under Article 226 both the Division Bench
and the single Judge exercise the same jurisdiction, they relied upon (2018)
17 SCC 106 in the matter of Roma Sonkar v. M.P.State Public Service
Commission.
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12. Many number of decisions have been quoted by the learned
Senior counsel and counsel appearing for the writ petitioner and the Sabha
who are supporting the judgment impugned on the ground that (i) the event
of rolling over on the left over plantain leaves after partaking the meal is a
religious practice protected under Article 25 and 26 of the Constitution; (ii)
also for the ground that, if a Judgment is obtained by fraud or
misrepresentation, that can be interfered with or set aside even by a lower
forum; and (iii) the single Bench as well as the Division Bench exercising
jurisdiction under Article 226, therefore the single Bench of the High Court
is not inferior to a Division Bench and hence, the Division Bench Judgment
can be declared to be null and void and set aside by a single Judge Bench.
13. These are all the broad propositions projected on behalf of the
counsels who appeared for the respondent / writ petitioner and the Sabha
who support the Judgment which is impugned herein.
14. Analysis :
We have heard the lengthy arguments advanced by number of
counsels for both sides and have perused the voluminous materials filed
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15. The first issue to be decided is whether the rolling over by
devotees on the left over plantain leaves after partaking the meal
irrespective of their community is a necessary religious practice of any
religion or religious denomination within the meaning of Article 25 and 26
of the Constitution or not.
16. In order to delve into this question, first let us go to the actual
event which was taken place on the eve of the festival at Sri Sadhasiva
Brahmendral Samathi /Temple at Nerur, Karur District.
17. Before which, a small life history of the saint can also be traced.
Sadhasiva was born in 15th century to a Telugu Brahmin couple Moksha
Somasundara Avadhani and Parvathi. His initial name was
Sivaramakrishna. Sadhasiva lived in Kumbakonam in Tamil Nadu in 15th to
16th Century. He went to learn vedas and various other subjects in sanskrit
in Thiruvisainallore. His contemporaries such as Sridhara Venkatesawara
Ayagal and Sri Bhagawan Nama Bodendral lived in the nearby areas at that
time.
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18. Sivaramakrishna left his home in search of truth, he became the
Sishya of Sri Paramasivendra Saraswathi. He started Athmavichara and he
received Mahavakiya Upadesas from His Guru. After taking Sanyasa, he
was set to have wandered around naked or semi-naked and often in a
translife state. During his life time, he has exhibited some wonders on the
river banks of Cauvery in Mahadhanapuram. He was asked by some
children to be taken to Madurai more than 100 miles away, for an annual
festival. The saint asked them to close their eyes and few seconds later they
opened their eyes and found they were in Madurai. At another time, by
meditating on the banks of the Cauvery River he was carried away by a
sudden flood. Weeks later when the villagers digging near a mount of earth,
their shovels struck his body, he suddenly woke up and walked away.
19. On the development of temples, he had met Raja Thondaiman of
Pudukottai and initiated him into the Dhakshinamoorthy Manthra. He said
to have written Manthra on the sand, this sand was picked up by the king
and it is in the worship of Royal family till now in the Dhakshinamoorthy
Temple inside the Pudukottai Palace in Pudukottai. The saint was
responsible to instal the deity at Punnainallore Mariamman near Thanjavur
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and guided the installation at Devadhanapatti Kamatchi Temple. He also
was involved in the establishment of Thanthonimalai Kalyana
Venkateshwara Temple in Karur. He also installed Hanuman Moorthy in the
Prasanna Venkateshwara Temple at Naalukall Mandapam in Thanjavur. He
instructed king of Thanjavur to install the Saraswathy Mahal Library which
runs till date. His Samathis are located in five places, Nerur, Manamadurai
in Tamil Nadu, Omkareshwarar, Kasi and Karachi.
20. Every year in Nerur and Manamadurai, music festivals are
conducted in his honour. In Manamadurai his Samathi is located at
Somanathar Temple.
21. From the life history of the saint Sadhasiva Brahmendral as is
available now, he was the saint in 15th and 16th century and he has given his
contribution towards construction of temples, installation of idols and he
has also wrote the Adhmavidhya Vilasa, an Advedic work and he has been
the great composer of Carnatic music. Out of the five places, where claimed
to be the Samathis of the saint, two places are in Tamil Nadu, one is at
Nerur and another is at Manamadurai. Now we are concerned in this lis
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about his Samathi at Nerur in Karur District.
22. It is also the literature which we come across that, a larger
Sadhasiva Shrine at Nerur was erected by the Raja of Pudukottai which is a
pilgrimage spot and has been witnesses numerous divine feelings.
23. Therefore, certainly there could be number of devotees who can
follow the said saint Sadhasiva Brahmendral. The Nerur Sadhguru
Sadhasiva Brahmendral Sabha has been constituted and they have been
looking after the festival annually conducted at Nerur Samathi / Temple of
the saint. This festival seems to have been normally taken place in the
month of Panguni, most probably in the second half of April and first half of
May month of every year. During the festival, every day there would be a
Vinja Viruthi, Gramapradhakshanam, Mahanyasa Poorva Abishekam,
Latcharchanai and Vedaparanayam taken place. Probably on the last day of
the festival, there would be a Urchava Aradhanai followed by Annadhanam.
The Annadham, i.e., free meal would be provided to the devotees who come
to the Temple / Samathi and after taking the meal, the left over plantain
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leaves would not be immediately removed, wherein on the row of left over
plantain leaves after partaking the meal by large number of devotees, the
devotees who have any vow to be fulfilled in order to get the prospects
which they prayed with the saint would take the exercise of rolling over on
the left over plantain leaves. Therefore this also is part of the festival being
conducted every year at the Samathi / Temple of the saint at Nerur.
24. Apart from other part of the festival, as we stated supra, the last
part namely, the rolling over on the left over plantain leaves after partaking
the meal whether could be allowed to be undertaken or not was the issue
before this Court in the writ petition in W.P.(MD).No.7068 of 2015 filed by
one V.Dalit Pandiyan. This writ petition was decided by a Division Bench
of this Court, by order dated 28.04.2015. The relevant portion of the order
has already been extracted herein above.
25. During the hearing, it was stated on behalf of the said writ
petitioner that, such a practice of rolling over on the left over plantain leaves
after partaking the meal would infringe the human dignity which is one of
the fundamental right of every citizen of this country and moreover it would
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lead to health hazard, therefore on these grounds it should be prohibited.
26. At that time, an interim order of stay granted by the Hon’ble
Supreme Court in SLP (Civil) No.33137 of 2014 arising out of Karnataka
High Court was also produced before the Division Bench, which has been
recorded by the Division Bench in Para 8 of the order stating that the “urulu
seve” and “made snana” being performed at Kukke Subramanya Temple in
Sullia Taluk of Dakshina Kannada District have been performed for five
centuries. From the news item it could be deduced that in the above said
ritual performance, people roll over on plantain leaves left by Brahmins
after the meal during the annual Jatra of the temple.
27. The Division Bench considering Article 14 and 21 of the
Constitution as well as the order passed by the Hon’ble Supreme Court in
the Karnataka case cited supra, where the similar ritual has been stayed by
the Hon’ble Supreme Court, it has come to the conclusion that such a ritual
cannot be permitted to be undertaken at Nerur Brahmendral Samathi and
therefore the writ petition was allowed, whereby the official respondents
had been directed not to allow any one to roll over on the plantain leaves
after the meal is taken.
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28. Before we delve into, whether the said order dated 28.04.2015
passed by the Division Bench on the same issue will estop the present writ
petitioner to file the writ petition after nine years, we must delve into the
aspect of whether such a rolling over on plantain leaves left over after
partaking the meal is to be considered as a religious practice protected
within the meaning of Article 25 and 26 of the Constitution.
29. There are number of Judgments quoted on behalf of the writ
petitioner side to support the contention that, whatever the religious practice
which have been followed for several years or time immemorial by a
religion, religious group or religious denomination, such kind of practice
shall not be prohibited or hindered by the State or Authorities concerned, as
such practice of religion is protected under Article 25 of the Constitution. If
any such practice is adopted under the conduction and supervision of any
religious denomination, that shall also be protected under Article 26 of the
Constitution.
30. Even though arguments and counter arguments have been made
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by the learned counsel appearing for both sides, by citing various decisions,
whether this kind of practice can be declared to be a part of religious
practice by the court of law is yet another question.
31. The arguments were advanced by quoting the decision of the
Constitutional Bench of the Hon’ble Supreme Court in Sabarimala case,
which has been quoted in fact by both sides counsel. We do feel that in the
said case, there has been a prohibition of women of particular age for
entering into the temple of Lord Iyyappa to have Dharshan, in the name of
religious practice, which in fact has been considered and decided in an
exhaustive decision of the Hon’ble Supreme Court, ultimately permitting the
women of the particular age group also to have Dharshan at Lord Iyyapa’s
Temple at Sabarimala.
32. Here in the case in hand, it is the court now has prohibited such a
practice of rolling over on plantain leaves left over after partaking meals.
Whether such a prohibition made by the Court of law on any part of the
religions practice is acceptable within the meaning of Article 25 and 26.
33. In this context only, the counsels who support the writ petitioner
to sustain the order impugned have made submissions stating that, such a
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practice is also being part of the religious practice or a practice of a
religious denomination is very well protected under Article 25 of the
Constitution. Whereas the counsel on the other side who are the appellants
herein have made submissions stating that, such a practice cannot be
construed as a religious practice within the meaning of Article 25 or 26 of
the Constitution and moreover on the ground of health and public morality,
if not under public order, such a practice cannot be permitted to and it shall
be curbed.
34. Insofar as the religious practice is concerned, in one of the earliest
case the Hon’ble Supreme Court in Commissioner, H.R.E v. L.T.Swamiar
reported in AIR 1954 SC 282, held as follows :
“(15) As regards Art.26, the first question is, what
is the precise meaning or connotation of the
expression “religious denomination” and whether a
Math could come within this expression. The word
“denomination” has been defined in the Oxford
Dictionary to mean “a collection of individuals
classed together under the same name: a religious
sect or body having a common faith and
organisation and designated by a distinctive name.
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It is well known that the practice of setting up
Maths as centres of the logical teaching was started
by Shri Sankaracharya and was followed by
various teachers since then. After Sankara, came a
galaxy of religious teachers and philosophers who
founded the different sects and sub-sects of the
Hindu religion that we find in India at the present
day.
Each one of such sects or sub-sects can certainly be
called a religious denomination, as it is designated
by a distinctive name,-in many cases it is the name
of the founder,-and has a common faith and
common spiritual organization. The followers of
Ramanuja, who are known by the name of Shri
Vaishnabas, undoubtedly constitute a religious
denomination; and so do the followers of
Madhwacharya and other religious teachers. It is a
fact well established by tradition that the eight
Udipi Maths were founded by Madhwacharya
himself and the trustees and the beneficiaries of
these Maths profess to be followers of that teacher.
The High Court has found that the Math in
question is in charge of the Sivalli Brahmins who
constitute a section of the followers of
Madhwacharya. As Art.26 contemplates not merely
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a religious denomination but also a section thereof,
the Math or the spiritual fraternity represented by it
can legitimately come within the purview of this
article.
16. The other thing that remains to be considered
in regard to Art.26 is, what is the scope of clause
(b) of the Article which speaks of management “of
its own affairs in matters of religion ?” The
language undoubtedly suggests that there could be
other affairs of a religious denomination or a
section thereof which are not matters of religion
and to which the guarantee given by this clause
would not apply. The question is, whereas the line
to be drawn between what are matters of religion
and what are not ?
…
….
…
What then are matters of religion ? The word
“religion ” has not been defined in the Constitution
and it is a term which is hardly susceptible of any
rigid definition.
…
…
…
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Religion is certainly a matter of faith with
individuals or communities and it is not necessarily
theistic. There are well known religions in India
like Buddhism and Jainism which do not believe in
God or in any Intelligent First Cause. A religion
undoubtedly has its basis in a system of beliefs or
doctrines which are regarded by those who profess
that religion as conducive to their spiritual well
being, but it would not be correct to say that
religion is nothing else, but a doctrine or belief. A
religion may not only lay down a code of ethical
rules for its followers to accept, it might prescribe
rituals and observances, ceremonies and modes of
worship which are regarded as integral parts of
religion, and these forms and observances might
extend even to matters of food and dress.
…
…
…
19. The contention formulated in such broad terms
cannot, we think, be supported. In the first place,
what constitutes the essential part of a religion is
primarily to be ascertained with reference to the
doctrines of that religion itself. If the tenets of any
religious sect of the Hindus prescribe that offerings
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of food should be given to the idol at particular
hours of the day, that periodical ceremonies should
be performed in a certain way at certain periods of
the year or that there should be daily recital of
sacred texts or ablations to the sacred fire, all these
would be regarded as parts of religion and the mere
fact that they involve expenditure of money or
employment of priests and servants or the use of
marketable commodities would not make them
secular activities partaking of a commercial or
economic character; all of them are religious
practices and should be regarded as matters of
religion within the meaning of Art.26(b).
What Art. 25(2) (a) contemplates is not regulation
by the State of religious practices as such, the
freedom of which is guaranteed by the Constitution
except when they run counter to public order,
health and morality, but regulation of activities
which are economic, commercial or political in
their character though they are associated with
religious practices.
22.
…
…
…
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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 organization 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.”
35. In yet another constitution decision of the Hon’ble Supreme Court
in S.P.Mittal v. Union of India reported in (1983) 1 SCC 51, the
L.T.Swamiar case has been considered and followed. In the S.P.Mittal case,
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the Hon’ble Supreme Court has made the following observation about the
religion :
“75. Article 26 confers religious denomination or
any section thereof, subject to public order,
morality and health, 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) to administer such property in accordance with
law.
76. In order to appreciate the contentions of the
parties, it is necessary to know the implication of
the words ‘religion’ and ‘religious denomination’.
The word ‘religion’ has not been defined in the
Constitution and indeed it is a term which is hardly
susceptible of any rigid definition. In reply to a
question on Dharma by Yaksha, Dharmaraja
Yudhisthira said thus:
tarko pratisth,srutyo vibhinna neko risiyasya matan
pramanam dharmaya tatwan nihitan guhayan
mahajano jein gatah sa pantha
Mahabharta-Aranyakaparvan 313.117.
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(Formal logic is vascillating. Srutis are
contradictory. There is no single rishi whose
opinion is final. The principle of Dharma is hidden
in a cave. The path of the virtuous persons is the
only proper course.)
77. The expression ‘Religion’ has, however, been
sought to be defined in the ‘Words and Phrases’,
Permanent Edn., 36 A, p. 461 onwards, as given
below:
“Religion is morality, with a sanction drawn from a
future state of rewards and punishments.
The term ‘religion’ and ‘religious’ in ordinary usage
are not rigid concepts. ‘Religion’ has reference to
one’s views of his relations to his Creator and to
the obligations they impose of re-verence for his
being and character, and of obedience to his will.
The word ‘religion’ in the primary sense (from
‘religare, to rebind-bind back), imports, as applied
to moral questions, only a recognition of a
conscious duty to obey restraining principles of
conduct. In such sense we suppose there is no one
who will admit that he is without religion.
‘Religion’ is bond uniting man to God, and virtue
whose purpose is to render God worship due him
as source of all being and principle of all49/128
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‘Religion’ has reference to man’s relation to
divinity; to the moral obligation of reverence and
worship, obedience and submission, It is the
recognition of God as as object of worship, love
and obedience; right feeling toward God, as highly
apprehended.
‘Religion’ means the services and adoration of God
or a god as expressed in forms of worship; an
apprehension, awareness, or conviction of the
existence of a Supreme Being; any system of faith,
doctrine and worship, as the Christian religion, the
religions of the orient; a particular system of faith
or worship.
The term ‘religion’ as used in tax exemption law,
simply includes: (I) a belief, not necessarily
referring to supernatural powers; (2) a cult,
involving a gregarious association openly
expressing the belief; (3) a system of moral
practice directly resulting from an adherence to the
belief; and (4) an organization within the cult
designed to observe the tenets or belief, the content
of such belief being of no moment.
While ‘religion’ in its broadest sense includes all
forms of belief in the existence of superior beings50/128
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W.A.(MD).Nos.986 and 1261 of 2024capable of exercising power over the human race,
as commonly accepted it means the formal
recognition of God, as members of societies and
associations, and the term, “a religious purpose’, as
used in the constitutional provision exempting
from taxation property used for religious purposes,
means the use of property by a religious society or
body of persons as a place for public worship.
‘Religion’ is squaring human life with superhuman
life. Belief in a superhuman power and such an
adjustment of human activities to the requirements
of that power as may enable the individual believer
to exist more happily is common to all ‘religions’.
The term ‘religion’ has reference to one’s views on
his relations to his creator, and to the obligations
they impose of reverence for his being and
character and obedience to his will.
The term ‘religion’ has reference to one’s views of
his relations to his Creator, and to the obligations
they impose of reverence for his being and
character, and of obedience to his will. With man’s
relations to his Maker and the obligations he may
think they impose, and the manner in which an
expression shall be made by him of his belief on
those subjects, no interference can be permitted,51/128
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W.A.(MD).Nos.986 and 1261 of 2024provided always the laws of society, designed to
secure its peace and prosperity, and the morals of
its people, are not interfered with.
78. These terms have also been judicially
considered in The Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt, 1954 SCR 1005,
where in the following proposition of law have
been laid down:
(1) Religion means “a system of beliefs or
doctrines which are regarded by those who profess
that religion as conducive to their spiritual well-
being”.
(2) A religion is not merely an opinion, doctrine or
belief. It has its outward expression in acts as well.
(3) Religion need not be theistic.
(4) “Religious denomination” means a religious
sect or body having a common faith and
organisation and designated by a distinctive name.
(5) A law which takes away the rights of
administration from the hands of a religious
denomination altogether and vests in another
authority would amount to violation of the right
guaranteed under clause (d) of Art. 26.”
The aforesaid propositions have been consistently
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followed in later cases including The Durgah
Committee, Ajmer & Anr. v. Syed Hussain Ali &
Ors, AIR 1961 SC 1402 and can be regarded as
well settled.”
36. Therefore the freedom of religion in our Constitution as per the
dictum of the Hon’ble Supreme Court in the cited cases extents not only to
religious beliefs but also to religious practices of course subject to the
restriction under Article 26. Article 26 has given four types of religious
freedom but they are subject to public order, morality and health.
37. Here in the case in hand, the practice of rolling over on the left
over plantain leaves after partaking the meals by the devotees of any
religious denomination, whether would hit public order or morality or
health.
38. Insofar as public order is concerned, it may not directly offend the
public order to be maintained as it is the belief of some set of people of a
particular religious denomination and if they want to do such a practice of
rolling over on the plantain leaves after partaking the meals on one day on
the eve of the festival to fulfil their vow, such a kind of practice, in our
considered view, cannot offend any public order.
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39. On the word morality, as the Constitution does not define the
word morality, it could have a larger connotation. If a particular act may
affect the morality especially the public morality from the point of view of
some one but the very same act may not be construed to be offending the
public morality from the point of view of another one.
40. However in this regard, it is for the State to take a decision as to
which are all the actions which could offend the public morality. As there
has been no specific scale or yardstick available, normally Court will be
very slow in declaring any act which is claimed to be a religious act or
practice or custom, as either offending the public morality or not.
41. These kind of rituals or customary practices which are performed
for more than 100 years or several 100 years cannot be said to be more
awful act of some group of people.
42. Going further on the word Angapradakshinam which means
rolling over, such kind of religious practice of Angapradakshinam is one of
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the accepted religious practice in Hindu religion. In many temples, we use
to witness that such kind of Angapradakshinam is taken place almost as an
every day affair. By taking this Angapradakshinam, it is the strong belief of
those who involve in it that by troubling their body, by taking this
Angapradakshinam, i.e., rolling over in the premises of the temple, that
would be an offering of a devotee in order to fulfil their vow for the fortune
they have received from the God or for any fortune for which they have
prayed to God.
43. Here in the case in hand, it is the strong belief of the devotees of
Sri Sadhasiva Brahmendral that, during the time when the Annadhanam,
i.e., free meal is provided to devotees, in the body of any one of such
devotees who take the free meal, the saint Sadhasiva Brahmendral also
would sit and take the meal. Therefore after completing the meal, if the
devotees take a roll over on the left over leaves, the leaf where, as per their
belief, the saint had taken the meal, could be touching the body of the
devotees, thereby they may strongly believe that, they would get the
blessings of the Guru.
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44. Scientifically we cannot ask any such proof for such kind of
belief. All religious belief is only based on the long standing belief and the
customs being followed by people at large or a group of people. Every such
religious practice is made by the devotees of any religion only on the basis
of belief, for which no scientific proof can be sought for.
45. But at the same time, the Constitution though has given such
freedom to every citizen to have their religious freedom of conscience and
free profession, practice and propagation of religion, such a freedom has
been restricted under the three heads, namely, public order, morality and
health.
46. As we have discussed, such a practice of rolling over may not
offend directly the public order and insofar as the morality is concerned,
what is the yardstick for morality also since has not been finally concluded
or found out, in the name of morality whether such practice can be restricted
is also a question. But at the same time, on the ground of health, such kind
of restrictions could be made by the State on any such practice claimed to be
the freedom of conscience or free profession or practice or propagation of
religion.
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47. Here in the case in hand, the practice of rolling over on plantain
leaves after partaking the meals, whether would be a health hazard is also
the question to be answered, where we do not find any materials placed
before us to establish that, such kind of practice would lead to severe health
hazard of the people who involved in such practice and also the people who
have connections with those devotees who have completed such practice of
rolling over on the leaves after partaking the meals.
48. In view of no proof or documents or literatures available before
this Court suggesting that the practice of rolling over will have the health
hazard, we cannot conclude that this practice would lead to a health hazard.
49. Therefore we do not think that such a practice can be prohibited
by the State on the ground of health, but at the same time on the ground of
morality, on the ground of alleged violation of Articles 14 and 21 of the
Constitution in a democratic country having the equal right and opportunity
of every citizen under our Constitution and there could be no discrimination
in the name of caste and religion by allowing such a practice, whether that
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would lead to any discrimination among the citizens is the large question
which has to be answered.
50. Insofar as the freedom under Article 25 which is subject to health
is concerned, illustratively we can state about the religious practice being
adopted, where, the devotees in order to fulfil their vow used to take a meal
on the empty floor without having any vessel, plate or leaf, that is called
“kz; nrhW” (Mun Soru) i.e., Earth Meal.
51. In this religious practice, the devotees after putting meal on the
empty floor in the temple premises would eat the meal. The empty floor is
called as soil or earth, in Tamil “kz;” (Mun) and the meal would be called
as Rice, in Tamil “nrhW” (Soru), hence, it is called as “kz; nrhW” (Mun
Soru), Earth Meal or Earth Rice. Even in this kind of practice, no one would
feel that this practice would lead to some health hazard.
52. However, insofar as the word morality is concerned as occurred in
Article 25 of the Constitution, the Hon’ble Apex Court in more than one
occasion has considered the same and treated the word morality as a
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Constitutional Morality.
53. In a decision in (2002) 8 SCC 106, in the mater of N.Adithayan v.
Travancore Devaswom Board, the Hon’ble Supreme Court has held that any
custom or usage irrespective of even any proof of their existence in pre-
Constitution days cannot be countenanced as a source of law to claim any
rights when it is found to violate human rights, dignity, social equality and
the specific mandate of the Constitution and law made by the Parliament.
Paragraph 18 of the said Judgment is extracted hereunder:
” In the present case, it is on record and to which
we have also made specific reference to the details
of facts showing that an Institution has been
started to impart training to students joining the
Institution in all relevant Vedic texts, rites,
religious observances and modes of worship by
engaging reputed scholars and Thanthris and the
students, who ultimately pass through the tests, are
being initiated by performing the investiture of
sacred thread and gayatri. That apart, even among
such qualified persons, selections based upon
merit are made by the Committee, which includes
among other scholars a reputed Thanthri also and59/128
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W.A.(MD).Nos.986 and 1261 of 2024the quality of candidate as well as the eligibility to
perform the rites, religious observances and modes
of worship are once again tested before
appointment. While that be the position to insist
that the person concerned should be a member of a
particular caste born of particular parents of his
caste can neither be said to be an insistence upon
an essential religious practice, rite, ritual,
observance or mode of worship nor any proper or
sufficient basis for asserting such a claim has been
made out either on facts or in law, in the case
before us, also. The decision in Shirur Mutt‘s case
(supra) and the subsequent decisions rendered by
this Court had to deal with the broad principles of
law and the scope of the scheme of rights
guaranteed under Articles 25 and 26 of the
Constitution, in the peculiar context of the issues
raised therein. The invalidation of a provision
empowering the Commissioner and his
subordinates as well as persons authorized by him
to enter any religious institution or place of
worship in any unregulated manner by even
persons who are not connected with spiritual
functions as being considered to violate rights
secured under Articles 25 and 26of the60/128
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W.A.(MD).Nos.986 and 1261 of 2024Constitution of India, cannot help the appellant to
contend that even persons duly qualified can be
prohibited on the ground that such person is not a
Brahaman by birth or pedigree. None of the earlier
decisions rendered before Seshammal’s case
(supra) related to consideration of any rights based
on caste origin and even Seshammal’s case (supra)
dealt with only the facet of rights claimed on the
basis of hereditary succession. The attempted
exercise by the learned Senior Counsel for the
appellant to read into the decisions of this Court in
Shirur Mutt‘s case (supra) and others something
more than what it actually purports to lay down as
if they lend support to assert or protect any and
everything claimed as being part of the religious
rituals, rites, observances and method of worship
and make such claims immutable from any
restriction or regulation based on the other
provisions of the Constitution or the law enacted
to implement such constitutional mandate,
deserves only to be rejected as merely a superficial
approach by purporting to deride what otherwise
has to have really an overriding effect, in the
scheme of rights declared and guaranteed under
Part III of the Constitution of India. Any custom or61/128
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W.A.(MD).Nos.986 and 1261 of 2024usage irrespective of even any proof of their
existence in pre constitutional days cannot be
countenanced as a source of law to claim any
rights when it is found to violate human rights,
dignity, social equality and the specific mandate of
the Constitution and law made by Parliament. No
usage which is found to be pernicious and
considered to be in derogation of the law of the
land or opposed to public policy or social decency
can be accepted or upheld by Courts in the
country.”
54. On the issue of morality, the lead Judgment is Sabarimala Temple
case reported in (2019) 11 SCC 1 in the matter of Indian Young Lawyers
Assn., (Sabarimala Temple-5J) v. State of Kerala, where the Hon’ble
Supreme Court has declared that the word morality occurred in Article 25 of
the Constitution is nothing but “Constitutional Morality”, even though the
word morality has not been defined in the Constitution. Paragraph 106 of
the Judgment speaks about the term morality occurring in Article 25(1)
which reads thus :
“106. The term “morality” occurring in Article
25(1) of the Constitution cannot be viewed with a62/128
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W.A.(MD).Nos.986 and 1261 of 2024narrow lens so as to confine the sphere of
definition of morality to what an individual, a
section or religious sect may perceive the term to
mean. We must remember that when there is a
violation of the fundamental rights, the term
“morality” naturally implies constitutional morality
and any view that is ultimately taken by the
Constitutional Courts must be in conformity with
the principles and basic tenets of the concept of
this constitutional morality that gets support from
the Constitution.”
55. The Supreme Court has further spoken about the Constitutional
morality in paragraph 219 which reads thus :
“If the Constitution has to have a meaning, is it
permissible for religion – either as a matter of
individual belief or as an organized structure of
religious precepts – to assert an entitlement to do
what is derogatory to women? Dignity of the
individual is the unwavering premise of the
fundamental rights. Autonomy nourishes dignity
by allowing each individual to make critical
choices for the exercise of liberty. A liberal
Constitution such as ours recognizes a wide range63/128
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W.A.(MD).Nos.986 and 1261 of 2024of rights to inhere in each individual. Without
freedom, the individual would be bereft of her
individuality. Anything that is destructive of
individual dignity is anachronistic to our
constitutional ethos. The equality between sexes
and equal protection of gender is an emanation of
Article 15. Whether or not Article 15 is attracted
to a particular source of the invasion of rights is
not of overarching importance for the simple
reason that the fundamental principles which
emerge from the Preamble, as we have noticed
earlier, infuse constitutional morality into its
content. In our public discourse of individual
rights, neither religious freedom nor organized
religion can be heard to assert an immunity to
adhere to fundamental constitutional precepts
grounded in dignity and human liberty. The
postulate of equality is that human beings are
created equal. The postulate is not that all men are
created equal but that all individuals are created
equal. To exclude women from worship by
allowing the right to worship to men is to place
women in a position of subordination. The
Constitution, should not become an instrument for
the perpetuation of patriarchy. The freedom to64/128
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W.A.(MD).Nos.986 and 1261 of 2024believe, the freedom to be a person of faith and the
freedom of worship, are attributes of human
liberty. Facets of that liberty find protection in
Article 25. Religion then cannot become a cover to
exclude and to deny the basic right to find
fulfilment in worship to women. Nor can a
physiological feature associated with a woman
provide a constitutional rationale to deny to her
the right to worship which is available to others.
Birth marks and physiology are irrelevant to
constitutional entitlements which are provided to
every individual. To exclude from worship, is to
deny one of the most basic postulates of human
dignity to women. Neither can the Constitution
countenance such an exclusion nor can a free
society accept it under the veneer of religious
beliefs.”
56. The Supreme Court ultimately held that, a claim for the exclusion
of women from religious worship, even if it is founded in religious text, is
subordinate to the Constitutional value of liberty, dignity and equality.
Exclusionary practices are contrary to Constitutional morality.
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57. In (2023) 4 SCC 541 in the matter of Central Board of Dawoodi
Bohra Community v. State of Maharashtra, the word “morality”, once again
has been taken into consideration. The Hon’ble Supreme Court under the
heading “Morality”, in the context of Articles 25 and 26 has held the
following:
” Morality in the context of Articles 25 and 26
30. The freedom of conscience guaranteed under clause
(1) of Article 25 is subject to public order, morality and
health. All four clauses (a), (b), (c) and (d) of Article 26
are also made specifically subject to public order,
morality and health. Thus, the right of the religious
denomination to manage its own affairs in matters of
religion is always subject to morality. As far as the
concept of morality contemplated by Articles 25 and 26 is
concerned, much water has flown after the decision in
Sardar Syedna [Sardar Syedna Taher Saifuddin Saheb v.
State of Bombay, 1962 Supp (2) SCR 496 : AIR 1962 SC
853] . Moreover, inSardar Syedna [Sardar Syedna Taher
Saifuddin Saheb v.State of Bombay, 1962 Supp (2) SCR
496 : AIR 1962 SC 853] , the argument that Article 26(b)
is subject to morality, was not at all considered as it was
not canvassed and pressed at the time of hearing. In
Navtej Singh Johar [Navtej Singh Johar v. Union of
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India, (2018) 10 SCC 1 : (2019) 1 SCC (Cri) 1] , this
Court held that when this Court deals with the issue of
morality, it must be guided by the concept of
constitutional morality and not by societal morality.
Moreover, notion of morality evolves with time and is not
static. The question whether constitutional morality can
be equated with equality, fraternity and non-
discrimination needs consideration.
31. The concept of morality as contemplated by Articles
25 and 26 was considered in greater detail by another
Constitution Bench in Sabrimala Temple-5 J. [Indian
Young Lawyers Assn. (Sabarimala Temple-5 J.) v.State
of Kerala, (2019) 11 SCC 1] There were four separate
opinions rendered by the Constitution Bench. Dipak
Misra, C.J., who wrote the opinion for himself and A.M.
Khanwilkar, J. and Dr D.Y. Chandrachud, J. (as then he
was), in their separate opinions concurred on the
interpretation of the concept of morality under Articles 25
and 26 of the Constitution. They also dealt with the issue
of the interplay between the rights under Article 26 and
the other rights under Part III of the Constitution.
32. The conclusions in the separate opinions of Dipak
Misra, C.J. and Dr D.Y. Chandrachud, J. can be
summarised as under:
32.1. The expression “morality” used in Articles 25 and
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W.A.(MD).Nos.986 and 1261 of 202426 has an overarching position similar to public order and
health.
32.2. The term “morality” cannot be viewed with a
narrow lens so as to confine the definition of morality to
what an individual or a religious sect may perceive to
mean. Morality naturally implies constitutional morality
and any view that is ultimately taken by the constitutional
courts must be in conformity with the basic tenets of
constitutional morality. “Morality” for the purposes of
Articles 25 and 26 must mean that which is governed by
fundamental constitutional principles.
32.3. The expression “subject to” is in the nature of a
condition and therefore, public order, morality and health
control Article 26.
32.4. There is no convincing reason to allow provisions
of Article 26 to tread in isolation. Even if Article 26 is
not specifically made subject to other fundamental rights,
there would still be a ground to read both together so that
they can exist in harmony. Absence of specific words in
Article 26 making it subject to other fundamental rights
cannot allow freedom of religious denomination to exist
in an isolated silo.
32.5. The freedom of religious denominations under
Article 26 must be read in a manner that requires the
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33. Nariman, J in para 176.7 of Sabrimala Temple-5 J.
[Indian Young Lawyers Assn. (Sabarimala Temple-5 J.)
v.State of Kerala, (2019) 11 SCC 1] , stressed that the
term “morality” refers to that which is considered
abhorrent to civilised society, given the mores of the
time, by reason of harm caused by way, inter alia, of
exploitation and degradation.
34. In his opinion rendered in Sabrimala Temple-5 J.
[Indian Young Lawyers Assn. (Sabarimala Temple-5 J.)
v.State of Kerala, (2019) 11 SCC 1] , Dr D.Y.
Chandrachud, J. (as he then was) has dealt with the
engagement of essential religious practices with
constitutional values. While dealing with the said issue,
in para 289, he has observed thus : (SCC p. 188)
“289. For decades, this Court has witnessed claims
resting on the essentiality of a practice that militate
against the constitutional protection of dignity and
individual freedom under the Constitution.It is the
duty of the courts to ensure that what is protected
is in conformity with fundamental constitutional
values and guarantees and accords with
constitutional morality. While the Constitution is
solicitous in its protection of religious freedom as
well as denominational rights, it must be
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understood that dignity, liberty and equality
constitute the trinity which defines the faith of the
Constitution. Together, these three values combine
to define a constitutional order of priorities.
Practices or beliefs which detract from these
foundational values cannot claim legitimacy.”
(emphasis supplied)
35. The question is whether the exclusionary practice
which prevails in the Dawoodi Bohra community of
excommunicating its members will stand the test of
constitutional morality? As observed by Das Gupta, J. in
Sardar Syedna [Sardar Syedna Taher Saifuddin Saheb v.
State of Bombay, 1962 Supp (2) SCR 496 : AIR 1962 SC
853] , the excommunication of a member of the
community affects many of his civil rights. The Privy
Council, in Hasanali v. Mansoorali [Hasanali v.
Mansoorali, 1947 SCC OnLine PC 63 : (1947-48) 75 IA
1] , in para 4, has dealt with the effect of
excommunication in Dawoodi Bohra community. Para 4
reads thus : (Hasanali case [Hasanali v. Mansoorali,
1947 SCC OnLine PC 63 : (1947-48) 75 IA 1] , SCC
OnLine PC)
“4.The appellants would limit the effect of
excommunication, whatever steps might have been
taken to bring it into being, to complete social
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ostracism. There is nothing, they say, to show that
it excluded from rights of property or worship.
Their Lordships do not find themselves able to
accept this limitation. The Dai is a religious leader
as well as being trustee of the property of the
community, and in India exclusion from caste is
well known. There is at least one case in which it is
recorded that certain persons applied to the King to
intercede with the thirty-third Dai, complaining
that in consequence of excommunication they were
kept from the mosques and places where true
believers met; and no instance has been cited
where excommunicated persons freely exercised
their religious rights. Indeed, the complaint in the
cases brought to their Lordships’ attention as
regards which relief is claimed for the appellants or
those whom they are said to represent is that they
were wrongly excommunicated, not that if rightly
excommunicated they were wrongly deprived of
their religious rights. Excommunication, in their
Lordships’ view, if justified, necessarily involves
exclusion from the exercise of religious rights in
places under the trusteeship of the head of the
community in which religious exercises are
performed.”
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(emphasis supplied)
36. A person who is excommunicated by the community,
will not be entitled to use the common property of the
community and the burial/cremation grounds of the
community. In a sense, such a person will virtually
become untouchable (being banished or ostracised)
within the community. In a given case, it will result in his
civil death. It can be argued that the concept of
constitutional morality which overrides the freedom
conferred by clause (b) of Article 26, will not permit the
civil rights of excommunicated persons which originate
from the dignity and liberty of human beings to be taken
away. The concepts of equality, liberty and fraternity are
certainly part of our constitutional morality. Basic ideas
enshrined in our Constitution are part of constitutional
morality. The conscience of our Constitution is
constitutional morality. Hence, it is contended that
excommunication or ostracisation is anathema to the
concepts of liberty and equality. It is against the anti-
discriminatory ethos which forms a part of constitutional
morality. Therefore, the constitutional court ought not to
tolerate anything which takes away the right and privilege
of any person to live with dignity as the concept of
constitutional morality does not permit the Court to do so.
Therefore, in our view, the protection under Article 26(b)
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granted by the decision in Sardar Syedna [Sardar Syedna
Taher Saifuddin Saheb v. State of Bombay, 1962 Supp (2)
SCR 496 : AIR 1962 SC 853] to the power to
excommunicate a member of the Dawoodi Bohra
community, needs reconsideration as the said right is
subject to morality which is understood as constitutional
morality. This issue will require examination by a larger
Bench.
58. Therefore these decisions have made it very clear that, insofar as
the Constitutional morality is concerned, whether a particular practice,
claimed to be a religious practice or custom can be continued or prohibited
on the ground of morality cannot be decided within the meaning of water
type compartment. Since the Constitutional morality is the broad term
within which any such religious practices can be protected as a fundamental
right of any religious group or denomination within the meaning of Articles
25 and 26 of the Constitution can be gone into depending upon the facts of
each and every case.
59. However, such a decision cannot be taken by this Court at this
juncture in view of the fact that the Hon’ble Supreme Court in a similar
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matter has seized of the same and granted stay of such a practice said to
have been followed 500 years more in a temple called Kukke Subramanya
Temple at Dakshina Kannada District in the State of Karnataka.
On the ground of Jurisdiction of the single Bench forum to declare a
decision of the Larger Bench, (here, it is Division Bench) as a nullity,
whether is permissible or not.
60. The practice of rolling over the plantain leaves after partaking the
meal was sought to be prohibited or stopped. That is how the writ petition in
W.P.(MD).No.7068 of 2015 was filed by one V.Dalit Pandiyan as a Public
Interest Litigation. The said writ petition was allowed by a Division Bench
of this Court by order, dated 28.04.2015. The relevant portion of the order
has already been extracted herein above.
60.1. Pursuant to this order of the Division Bench which has become
final as no appeal has been filed against it, the order has been implemented
by the District authorities as well as the fourth respondent, i.e., Sabha as no
such event of rolling over on plantain leaves was undertaken since 2015 till
the present writ petition was filed by P.Naveen Kumar who is the first
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respondent in these Writ Appeals.
60.2. When the writ petition was decided by the single Bench which
is impugned herein, this Division Bench Judgment, dated 28.04.2015 was
brought to the notice of the writ court, where the writ court has taken note
of the entirety of the Judgment of the Division Bench which has been
extracted in paragraph 26 of the Judgment. It was mainly on the reason that,
the list of respondents in the said writ petition before the Division bench did
not contain any private respondents as it had only official respondents like
the Chief Secretary, District Collector, Superintendent of Police and
Revenue Divisional Officer of the District, concerned Tahsildar and
Inspector of Police. Therefore, the writ court has wondered that, there has
been no private respondents impleaded including the Sabha who are the
affected parties by virtue of the order that has been passed by the Division
Bench, stopping or prohibiting the practice of rolling over. Therefore it is a
clear case of violation of principles of natural justice, was the first reason
given by the writ court in declaring the Division Bench Judgment as a
nullity.
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60.3. It is the further reason given by the writ court that, the decision
of the Division Bench is suffered from the fatal viz of non-joinder of
necessary parties. Quoting the decision of AIR 1963 SC 786, the writ court
held that, any person whose interest is affected will be a necessary party and
that any order made without hearing the affected parties would be void. The
decision of a Full Bench which declared a Division Bench order as a nullity
as reported in 2022 (5) CTC 145 also has been quoted by the writ court.
60.4. The writ court has further stated that, the Division Bench went
by a news items based on which such a conclusion had been arrived at as if
that there has been a stay order passed by the Hon’ble Supreme Court.
60.5. However, the writ court has failed to verify whether any such
stay order has been granted by the Hon’ble Supreme Court, because it is a
fact that such an order of stay has been granted by the Hon’ble Supreme
Court in SLP (Civil) No.33137 of 2014 by order, dated 12.12.2014.
60.6. In this context, let us note as to under which circumstances,
such a stay order has been granted in the said case of State of Karnataka
and others Vs. Adivasi Budakattu Hitarakshana Vedike Karnataka. In fact a
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Division Bench of the Karnataka High Court in W.P.No.8123 of 2012 as a
Public Interest Litigation, by order, dated 08.11.2012 has decided the issue,
where, the issue was the practice of Pankti Bheda and Made Made Snana
whether can be practiced continuously, for which any modified order can be
passed. The Division Bench of the Karnataka High Court has passed the
following order:
“2. The mater has been heard in detail in a very congenial
atmosphere. On behalf of respondents, it is voluntarily
submitted that so far as the practice of ‘Pankti Bheda’,
‘Madesnana’, ‘Made Seve’ and ‘Madesevane’ shall henceforth be
regulated and practiced adhering to the following:
1. The ceremony shall be open to all persons
regardless of religion, caste, creed or gender.
2. The practice of a particular community partially
eating the food which has been offered to the
Deity as an oblation shall be discontinued. The
food, i.e., offered to the Deity after offering in the
sanctum-sanctorum as ‘Naivedyam’ shall be placed
on plantain leaves in the outer yard of the temple
over which, those willing devotees shall be
allowed to perform ‘Made Made Snana’. This food
will not have been tasted or partially eaten by the
members of any community.
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3. The respondents shall neither encourage nor
sponsor or permit any form of ‘Pankti Bheda’ on
the basis of religion, caste, creed or gender.
4. The ‘Made Made Snana’ shall be totally
voluntary.
3. Learned Senior counsel appearing on behalf of the
petitioners submits that if the new form of religious practice is
adhered to, it will remove whatever is perceived as
discrimination.
4. In view of the above modifications and the assurance given
by the respondent Nos.1 to 5 that it will be meticulously
followed, we are satisfied that no further attention of this Court
is called for in this petition.
5. Petition is accordingly disposed of.”
60.7. The main modification that has been made by the Division
Bench of the Karnataka High Court in the said Judgment was that, the
practice of a particular community partially eating the food, which has been
offered to the deity as an oblation shall be discontinued. The food that is
offered to the Deity after offering in the sanctum-sanctorum as ‘Naivedyam’
shall be placed on plantain leaves in the outer yard of the temple over
which, those willing devotees shall be allowed to perform ‘Made Made
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Snana’. This food will not be tasted or partially eaten by the members of any
community.
60.8. This order was in fact reviewed by another Division Bench on
19.11.2014, where the earlier practice that was prevailing, whereby two
community people were permitted to perform pooja etc., were directed to be
restored and continued. The relevant portion of the order in review, dated
19.11.2014 reads thus :
“17. We are of the view that, the practice which
was prevailing earlier shall continue till we decide
this review petition on merits. So that the modified
practice is not given effect to, as was done by the
Supreme Court for the last two years. Therefore,
we pass the following : ORDER – The order passed
by this Court on 08.11.2012 in W.P.No.8123 of
2012 is stayed pending disposal of the review
petition on merits. Issue notice to all other
respondents in this case. The learned Government
Advocate is directed to take notice for respondent
Nos.12 to 15.”
60.9. This order passed in the Review on 19.11. 2014 by the Division
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Bench of the Karnataka High Court has been appealed by the State of
Karnataka and others in SLP (Civil) No.33137 of 2014. In that SLP only the
Hon’ble Supreme Court by order, dated 12.12.2014 has passed the following
order :
“Issue notice.
Mr.K.K.Rai, learned senior counsel appearing for
Respondent No.1 accepts and waives formal
notice on behalf of Respondent No.1.
Mr.E.C.Vidya Sagar, learned counsel appearing
for Respondent Nos.2 and 6 accepts and waives
formal notice on behalf of Respondent Nos.2 and
6.
Learned counsel appearing for Respondent Nos.1,
2 and 6 seeks some time to file their reply. Reply
and rejoinder be filed and the matter be listed after
pleadings are complete.
In the meanwhile, there shall be stay of the
operation of the impugned order, dated 19th
November, 2014 passed by the High Court of
Karnataka in R.P.No.1248 of 2014 in W.P.No.
8123 of 2012.”
(Emphasis supplied)
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60.10. Therefore the permission that has been given by the Division
Bench by order, dated 19.11.2014 to perform the ‘“urulu seve” and “made
snana” in the old form, i.e., rolling over the plantain leaves after partaking
the meals restored by the Division Bench has been stayed by the Hon’ble
Supreme Court.
60.11. It is to be noted that, the said practice, as has been claimed by
the stakeholders at a temple called Kukke Subramanya Temple at Dakshina
Kannada District at Karnataka State, has been more than 500 years old.
Despite that, the practice has been stayed by the Hon’ble Supreme Court.
Therefore, the said Judgment since has been brought to the notice of the
Division Bench during the year 2015, merely because a news item alone has
been brought to the notice of the Division Bench not the Judgment,
therefore the Judgment was wrong, cannot be the conclusion arrived at by
the writ court in the impugned order.
60.12. The writ court has also stated that, just an Executing Court
who can declare the decree sought to be executed as a nullity, the writ court
of single Bench have the jurisdiction to declare the order, dated 28.04.2015
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made by the Division Bench as nullity. The relevant portion of the order
impugned reads thus :
” 34. There is merit in the contention of the learned
Additional Government Pleader that individuals
and officials cannot on their own assume that a
judicial order is nullity and can be ignored. It is
true that the Hon’ble Supreme Court in the
decision reported in (2022) 1 SCC 209
(Amazon.com NV Investment v. Future Retail
Limited) reiterated the well known proposition
that no order bears the stamp of invalidity on its
forehead and that it has to be set aside in regular
court proceedings as being illegal. In this case, the
petitioner has filed petition under Article 226 of
the Constitution of India and it is in these
proceedings the order dated 28.04.2015 made in
WP(MD)No.7068 of 2015 has been declared as
nullity. Just an executing court can declare the
decree sought to be executed as nullity, I also have
the jurisdiction to declare the order dated
28.04.2015 made in WP(MD)No.7068 of 2015 as
nullity.”
60.13. The learned writ court has also taken clue from a decision of a
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single Bench from Karnataka High Court, dated 20.12.2023 made in
W.P.No.47144 of 2018, where it was held that the single Bench is not
subordinate to the Division Bench and on that score, the single Bench here
in the order impugned has declared that, the single Bench is not guilty of
judicial indiscipline. The relevant portion of the order reads thus :
“35. It is pertinent to note that a Single Bench is
not a court subordinate to Division Bench. His
Lordship Mr.Justice M.Nagaprasanna of the High
Court of Karnataka vide order dated 20.12.2023 in
WP No.47144 of 2018 took exception to the
remand order made by the Hon’ble Division
Bench. The learned Judge cited the observation of
the Hon’ble Supreme Court made in Roma Sonker
v. M.P.S.P.S.C (2018) 17 SCC 106 which was to
the effect that both the learned Single Judge as
well as the Division Bench exercise the same
jurisdiction under Article 226 of the Constitution
of India. Only to avoid inconvenience to the
litigants, another tier of screening by the Division
Bench is provided in terms of the power of the
High Court but that does not mean that a single
Judge is subordinate to the Division Bench. Being
a writ proceeding, the Division Bench is called83/128
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W.A.(MD).Nos.986 and 1261 of 2024upon in the intra-court appeal primarily and mostly
to consider the correctness or otherwise of the
view taken by the single Judge. The Division
Bench must consider the appeal on merits by
deciding on the correctness of the judgment of the
single Judge instead of remitting the matter to the
single Judge. Justice M.Nagaprasanna also quotes
at length the judgment of the Full Bench of the
Karnataka High Court rendered in Town House
Building Co-operative Society Limited v. Special
Deputy Commissioner, 1988 (2) KLJ 510. The
Hon’ble Full Bench in turn relied on an earlier Full
Bench decision in State of Karnataka v.
H.Krishnappa (ILR 1975 (Kar) 1015). It was held
that the writ appeal jurisdiction cannot be
compared and is not akin to an appellate
jurisdiction as ordinarily understood which
presupposes the existence of a superior court and
an inferior court. No such relationship exists
between a single judge and a Division Bench as
both exercise the jurisdiction vested in the High
Court. There is no difference between a writ
petition referred to a Division Bench or a writ
petition which comes up before a Division Bench
through a Writ Appeal in the matter of exercise of84/128
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W.A.(MD).Nos.986 and 1261 of 2024the jurisdiction and powers of the Court under
Article 226 of the Constitution. I am therefore
convinced that I am not guilty of judicial
indiscipline. This is more so because I have only
examined the character of an earlier judicial order
passed in exercise of the jurisdiction under Article
226. ”
60.14. Whether this approach of the single Bench assuming
jurisdiction to declare the Division Bench Judgment on the same subject as
a nullity is a moot question to be answered in this lis.
60.15. In this context, many number of decisions have been cited by
the learned counsel appearing for the appellants.
60.16. In (2005) 2 SCC 673 in the case of Central Board of Dawoodi
Bohra Community v. State of Maharashtra, the Supreme Court has
elaborately discussed about the decision of the coordinate Bench or coequal
benches, course permissible in case of bench doubting the view taken by the
coordinate Bench, doctrine of stare decisis, what is binding precedent, law
declared by the Supreme Court, per incuriam decisions, meaning etc. The
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aforesaid legal position have been summed up in paragraph 12 of the
Judgment which reads thus :
“12. Having carefully considered the submissions
made by the learned Senior Counsel for the parties
and having examined the law laid down by the
Constitution Benches in the abovesaid decisions, we
would like to sum up the legal position in the
following terms:
(1) The law laid down by this Court in a decision
delivered by a Bench of larger strength is binding
on any subsequent Bench of lesser or coequal
strength.
(2) [Ed.: Para 12(2) corrected vide Official
Corrigendum No. F.3/Ed.B.J./21/2005 dated
3-3-2005.] A Bench of lesser quorum cannot
disagree or dissent from the view of the law taken
by a Bench of larger quorum. In case of doubt all
that the Bench of lesser quorum can do is to invite
the attention of the Chief Justice and request for
the matter being placed for hearing before a
Bench of larger quorum than the Bench whose
decision has come up for consideration. It will be
open only for a Bench of coequal strength to
express an opinion doubting the correctness of the86/128
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strength, whereupon the matter may be placed for
hearing before a Bench consisting of a quorum
larger than the one which pronounced the decision
laying down the law the correctness of which is
doubted.
(3) [Ed.: Para 12(3) corrected vide Official
Corrigendum No. F.3/Ed.B.J./7/2005 dated
17-1-2005.] The above rules are subject to two
exceptions: (i) the abovesaid rules do not bind the
discretion of the Chief Justice in whom vests the
power of framing the roster and who can direct
any particular matter to be placed for hearing
before any particular Bench of any strength; and
(ii) in spite of the rules laid down hereinabove, if
the matter has already come up for hearing before
a Bench of larger quorum and that Bench itself
feels that the view of the law taken by a Bench of
lesser quorum, which view is in doubt, needs
correction or reconsideration then by way of
exception (and not as a rule) and for reasons given
by it, it may proceed to hear the case and examine
the correctness of the previous decision in
question dispensing with the need of a specific
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W.A.(MD).Nos.986 and 1261 of 2024constituting the Bench and such listing. Such was
the situation in Raghubir Singh [(1989) 2 SCC
754] and Hansoli Devi [(2002) 7 SCC 273] .”
60.17. In Official Liquidator v. Dayanand reported in (2008) 10 SC 1,
the Supreme Court has lamented the practice of not adhering to the judicial
discipline. The relevant portion of the order reads thus :
“89. It is interesting to note that in Coir Board v.
Indira Devi P.S. [(1998) 3 SCC 259 : 1998 SCC
(L&S) 806] , a two-Judge Bench doubted the
correctness of the seven-Judge Bench judgment in
Bangalore Water Supply & Sewerage Board v.A.
Rajappa [(1978) 2 SCC 213 : 1978 SCC (L&S)
215] and directed the matter to be placed before
Hon’ble the Chief Justice of India for constituting
a larger Bench. However, a three-Judge Bench
headed by Dr. A.S. Anand, C.J., refused to
entertain the reference and observed that the two-
Judge Bench is bound by the judgment of the
larger Bench—Coir Board v. Indira Devai P.S.
[(2000) 1 SCC 224 : 2000 SCC (L&S) 120]
90. We are distressed to note that despite several
pronouncements on the subject, there is88/128
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W.A.(MD).Nos.986 and 1261 of 2024substantial increase in the number of cases
involving violation of the basics of judicial
discipline. The learned Single Judges and
Benches of the High Courts refuse to follow and
accept the verdict and law laid down by
coordinate and even larger Benches by citing
minor difference in the facts as the ground for
doing so. Therefore, it has become necessary to
reiterate that disrespect to the constitutional ethos
and breach of discipline have grave impact on the
credibility of judicial institution and encourages
chance litigation. It must be remembered that
predictability and certainty is an important
hallmark of judicial jurisprudence developed in
this country in the last six decades and increase in
the frequency of conflicting judgments of the
superior judiciary will do incalculable harm to the
system inasmuch as the courts at the grass roots
will not be able to decide as to which of the
judgments lay down the correct law and which
one should be followed.
91. We may add that in our constitutional set-up
every citizen is under a duty to abide by the
Constitution and respect its ideals and institutions.
Those who have been entrusted with the task of89/128
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W.A.(MD).Nos.986 and 1261 of 2024administering the system and operating various
constituents of the State and who take oath to act
in accordance with the Constitution and uphold
the same, have to set an example by exhibiting
total commitment to the constitutional ideals. This
principle is required to be observed with greater
rigour by the members of judicial fraternity who
have been bestowed with the power to adjudicate
upon important constitutional and legal issues and
protect and preserve rights of the individuals and
society as a whole. Discipline is sine qua non for
effective and efficient functioning of the judicial
system. If the courts command others to act in
accordance with the provisions of the Constitution
and rule of law, it is not possible to countenance
violation of the constitutional principle by those
who are required to lay down the law.
92. In the light of what has been stated above, we
deem it proper to clarify that the comments and
observations made by the two-Judge Bench in
U.P. SEB v. Pooran Chandra Pandey [(2007) 11
SCC 92 : (2008) 1 SCC (L&S) 736] should be
read as obiter and the same should neither be
treated as binding by the High Courts, tribunals
and other judicial foras nor they should be relied90/128
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W.A.(MD).Nos.986 and 1261 of 2024upon or made basis for bypassing the principles
laid down by the Constitution Bench.”
60.18. In (2015) 8 SCC 129 in the matter of P.Suseela v. University
Grants Commission, the Supreme Court has held as follows :
“25. In SLPs (C) Nos. 3054-55 of 2014, a
judgment of the same High Court dated 6-1-2014
[Vinay Singh v. Union of India, 2014 SCC OnLine
All 175 : (2014) 103 ALR 192] again by a
Division Bench arrived at the opposite conclusion.
This is also a matter which causes us some
distress. A Division Bench judgment of the same
High Court is binding on a subsequent Division
Bench. The subsequent Division Bench can either
follow it or refer such judgment to the Chief
Justice to constitute a Full Bench if it differs with
it. We do not appreciate the manner in which this
subsequent judgment (even though it has reached
the right result), has dealt with an earlier binding
Division Bench judgment of the same High Court.
In fact, as was pointed out to us by the learned
counsel for the appellants, the distinction made in
para 20 between the facts of the earlier judgment
and the facts in the later judgment is not a91/128
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W.A.(MD).Nos.986 and 1261 of 2024distinction at all. Just as in the 2012 judgment
[Ramesh Kumar Yadav v. University of
Allahabad, 2012 SCC OnLine All 667 : (2013) 4
All LJ 635] PhD degrees had been awarded prior
to 2009, even in the 2014 judgment [Vinay Singh
v. Union of India, 2014 SCC OnLine All 175 :
(2014) 103 ALR 192] PhD degrees with which
that judgment was concerned were also granted
prior to 2009. There is, therefore, no distinction
between the facts of the two cases. What is even
more distressing is that only sub-para (4) of the
conclusion in the 2012 judgment [Ramesh Kumar
Yadav v. University of Allahabad, 2012 SCC
OnLine All 667 : (2013) 4 All LJ 635] is set out
without any of the other sub-paragraphs of para
105 extracted above to arrive at a result which is
the exact opposite of the earlier judgment. This
judgment is also set aside only for the reason that
it did not follow an earlier binding judgment. This
will, however, not impact the fact that the writ
petitions in the 2014 judgment [Vinay Singh v.
Union of India, 2014 SCC OnLine All 175 :
(2014) 103 ALR 192] have been dismissed. They
stand dismissed having regard to the reasoning in
the judgment delivered by us today. In view of92/128
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W.A.(MD).Nos.986 and 1261 of 2024this pronouncement, nothing survives in Contempt
Petitions Nos. 286-87 of 2014 which are disposed
of as having become infructuous. The other
appeals from the Delhi [All India Researchers’
Coordination Committee v. Union of India, 2010
SCC OnLine Del 4304 : (2011) 121 DRJ 297] ,
Madras [P. Suseela v. UGC, 2010 SCC OnLine
Mad 6041 : (2011) 2 CTC 593] and Rajasthan
[Ravindra Singh Shekhawat v. Union of India,
2012 SCC OnLine Raj 2751] High Courts are,
consequently, also dismissed. There shall be no
order as to costs.”
60.19. In Mary Pushpam v. Telvi Curusumary & Ors reported in
2024 LiveLaw (SC) 12, the Hon’ble Supreme Court has held as follows :
“18. The legal position on Coordinate Benches has further been
elaborated by this Court in State of Punjab & Anr. v. Devans
Modern Breweries Ltd. & Anr.2 :
“339. Judicial discipline envisages that a
coordinate Bench follow the decision of an earlier
coordinate Bench. If a coordinate Bench does not
agree with the principles of law enunciated by
another Bench, the matter may be referred only to
a larger Bench.
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340. In Halsbury’s Laws of England (4th Edn.),
Vol. 26 at pp. 297-98, para 578, it is stated: “A
decision is given per incuriam when the court has
acted in ignorance of a previous decision of its
own or of a court of coordinate jurisdiction which
covered the case before it, in which case it must
decide which case to follow.”
19. We have already discussed about the importance of
ensuring judicial discipline and the same has also been upheld
by various judgement of this Court. In Central Board of
Dawoodi Bohra Community & Anr. vs. State of Maharashtra &
Anr.3 , this Court has summed up the legal position of rules of
judicial discipline as follows:
“12. ***
(1) The law laid down by this Court in a decision
delivered by a Bench of larger strength is binding
on any subsequent Bench of lesser or coequal
strength.
(2) A Bench of lesser quorum cannot disagree or
dissent from the view of the law taken by a Bench
of larger quorum. In case of doubt all that the
Bench of lesser quorum can do is to invite the
attention of the Chief Justice and request for the
matter being placed for hearing before a Bench of
larger quorum than the Bench whose decision has94/128
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W.A.(MD).Nos.986 and 1261 of 2024come up for consideration. It will be open only for
a Bench of coequal strength to express an opinion
doubting the correctness of the view taken by the
earlier Bench of coequal strength, whereupon the
matter may be placed for hearing before a Bench
consisting of a quorum larger than the one which
pronounced the decision laying down the law the
correctness of which is doubted.”
20. In the current case, as previously mentioned, the High
Court’s judgment from the initial round dated 30.03.1990,
noted that the disputed property included 8 cents of land, not
just the building structure on it. As per the Doctrine of Merger,
the judgments of the Trial Court and the First Appellate Court
from the first round of litigation are absorbed into the High
Court’s judgment dated 30.03.1990. This 1990 judgment
should be regarded as the conclusive and binding order from
the initial litigation. Following the principles of judicial
discipline, lower or subordinate Courts do not have the
authority to contradict the decisions of higher Courts. In the
current case, the Trial Court and the High Court, in the second
round of litigation, violated this judicial discipline by adopting
a position contrary to the High Court’s final judgment dated
30.03.1990, from the first round of litigation.”
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60.20. Still many number of decisions can be quoted from the Hon’ble
Supreme Court which underline the need of following the judicial discipline
among the Judicial fraternity. Even if a decision of the higher Judicial forum
is wrong and such a conclusion cannot be arrived at by the higher Judicial
forum, even then, the Bench of lesser strength has only to accept the verdict.
In case a coequal forum or Bench differs with the view already taken by yet
another coequal forum or Bench, even then, the coequal Bench or forum can
place the matter before the Hon’ble Chief Justice to constitute a Larger
Bench to whom the matter to be referred for an authoritative
pronouncement.
60.21. This method of judicial discipline has been underlined and
reiterated in many decisions of the Hon’ble Supreme Court, only few have
been quoted herein above.
60.22. When that being so, the single Bench forum cannot assume the
jurisdiction to declare a Division Bench Judgment consisting of two Judges
forum a nullity. Even though the reason has been stated as if the Division
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bench has passed order without joining the necessary party, therefore for
non-joinder of necessary party that can be nullified and also for the reason
that, the Division Bench has not given proper opportunity to the affected
parties, thereby it is a case of violation of principles of natural justice and
moreover the Judgment was rendered on the basis of misrepresentation
which amounts to fraud, therefore for all these reasons, the Division Bench
Judgment is to be declared as nullity and on that score, whether the single
Bench can assume the jurisdiction to declare such a Division Bench
Judgment as a nullity one.
60.23. On analysing the aforestated Judgments and several other
Judgments, since it is a settled proposition of law in the realm of judicial
discipline that even if it is a wrong judgment in the opinion of the lesser
forum of a higher judiciary, the same cannot be touched upon unless it is
referred for a larger forum, if it is coequal forum or bench and if it is a lesser
forum certainly binding on them.
60.24. This basic judicial discipline have to be strictly maintained, as
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without which, among the judicial fraternity no uniformity of decision can
be possible, thereby it would give an alarming signal to the general litigant
public who may raise doubt over the decision making process of the higher
judicial forum.
60.25. That is the reason why in many number of decisions, the
Hon’ble Supreme Court has repeatedly held that, the judicial forum with a
binding nature have to strictly follow the Judicial precedents.
60.26. In some of the cases where the Hon’ble Supreme Court has
held that, even a comment or criticism that has been made by a lesser
quorum of the Hon’ble Supreme Court of the decision of the Constitutional
Bench of the Supreme Court cannot be approved.
60.27. A Division Bench Judgment in Review Application 173 of
2019 in W.A.No.98 of 2017 dated 06.11.2019 in the matter of J.Sathish v.
The Member Secretary, Tamil Nadu Pollution Control Board, has made this
position clear. The relevant portion of the Judgment of the Division Bench
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in J.Sathish case is extracted hereunder for easy reference.
” 15.At this juncture, it would be appropriate to refer to the
decision of the Hon’ble Supreme Court in the case of Official
Liquidator v. Dayanand and others, reported in (2009) 1 SCC
(L&S) 943, in which the aspect of judicial discipline has been
discussed in detail. Paragraphs 75 to 92 of the said judgment
are relevant and the same are extracted as under:
75.By virtue of Article 141 of the Constitution, the
judgment of the Constitution Bench in Secretary, State of
Karnataka vs. Uma Devi (2006 SCC (L&S) 753) is
binding on all the courts including this Court till the same
is overruled by a larger Bench. The ratio of the
Constitution Bench judgment has been followed by
different two-Judges Benches for declining to entertain
the claim of regularization of service made by ad
hoc/temporary/ daily wage/casual employees or for
reversing the orders of the High Court granting relief to
such employees – Indian Drugs and Pharamaceuticals
Ltd. vs. Workmen [2007 (1) SCC 408], Gangadhar Pillai
vs. Siemens Ltd. [2007 (1) SCC 533], Kendriya
Vidyalaya Sangathan vs. L.V. Subramanyeswara [2007
(5) SCC 326], Hindustan Aeronautics Ltd. vs. Dan
Bahadur Singh [2007 (6) SCC 207]. However, in U.P.
SEB vs. Pooran Chand Pandey [2007 (11) SCC 92] on
which reliance has been placed by Shri Gupta, a two-
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Judges Bench has attempted to dilute the Constitution
Bench judgment by suggesting that the said decision
cannot be applied to a case where regularization has been
sought for in pursuance of Article 14 of the Constitution
and that the same is in conflict with the judgment of the
seven-Judges Bench in Maneka Gandhi vs. Union of
India [1978 (1) SCC 248]. 76.The facts of U.P.SEB vs.
Pooran Chand Pandey (supra) were that the respondents
(34 in number) were employed as daily wage employees
by the Cooperative Electricity Supply Society in 1985.
The Society was taken over by Uttar Pradesh Electricity
Supply Board in 1997 along with daily wage employees.
Earlier to this, the Electricity Board had taken a policy
decision on 28.11.1996 to regularize the services of its
employees working on daily wages from before 4.5.1990,
subject to their passing the examination. The respondents
moved the High Court claiming benefit of the policy
decision dated 28.11.1996. The learned Single Judge of
the High Court held that once the employees of the
society became employees of the Electricity Board, there
was no valid ground to discriminate them in the matter of
regularization of service. The Division Bench approved
the order of the Single Bench. A two-Judges Bench of
this Court dismissed the appeal of the Electricity Board.
In para 11 of its judgment, the two-Judges Bench
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distinguished Secretary, State of Karnataka vs. Uma Devi
(supra) by observing that the ratio of that judgment
cannot be applied to a case where regularization has been
sought for in pursuance of Article 14 of the Constitution.
The two-Judges Bench then referred to State of Orissa vs.
Sudhanshu Sekhar Misra [AIR 1968 SC 647], Ambica
Quarry Works vs. State of Gujarat [1987 (1) SCC 213],
Bhavnagar University vs. Palitana Sugar Mill Pvt. Ltd.
[2003 (2) SCC 111], Bharat Petroleum Corpn. Ltd. vs.
N.R.Vairamani [2004 (8) SCC 579] and observed:
“16. We are constrained to refer to the above
decisions and principles contained therein because
we find that often Umadevi (3) case is being
applied by courts mechanically as if it were a
Euclid’s formula without seeing the facts of a
particular case. As observed by this Court in
Bhavnagar University and Bharat Petroleum
Corpn. Ltd. a little difference in facts or even one
additional fact may make a lot of difference in the
precedential value of a decision. Hence, in our
opinion, Umadevi (3) case cannot be applied
mechanically without seeing the facts of a
particular case, as a little difference in facts can
make Umadevi (3) case inapplicable to the facts of
that case.”
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“18.We may further point out that a seven-Judge
Bench decision of this Court in Maneka Gandhi
vs. Union of India has held that reasonableness
and non-arbitrariness is part of Article 14 of the
Constitution. It follows that the Government must
act in a reasonable and non-arbitrary manner
otherwise Article 14 of the Constitution would be
violated. Maneka Gandhi case is a decision of a
seven-Judge Bench, whereas Umadevi (3) case is a
decision of a five Judge Bench of this Court. It is
well settled that a smaller Bench decision cannot
override a larger Bench decision of the Court. No
doubt, Maneka Gandhi case does not specifically
deal with the question of regularisation of
government employees, but the principle of
reasonableness in executive action and the law
which it has laid down, in our opinion, is of
general application.” [Emphasis supplied]
77.We have carefully analyzed the judgment of the two-Judges
Bench and are of the considered view that the above
reproduced observations were not called for. The only issue
which fell for consideration by twoJudges Bench was whether
the daily wage employees of the society, the establishment of
which was taken over by the Electricity Board along with the
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employees, were entitled to be regularized in terms of the
policy decision taken by the Board and whether the High Court
committed an error by invoking Article 14 of the Constitution
for granting relief to the writ petitioners. The question whether
the Electricity Board could frame such a policy was neither
raised nor considered by the High Court and this Court. The
High Court simply adverted to the facts of the case and held
that once the daily wage employees of the society became
employees of the Electricity Board, they could not be
discriminated in the matter of implementation of the policy of
regularization. Therefore, the two-Judges Bench had no
occasion to make any adverse comment on the binding
character of the Constitution Bench judgment in Secretary,
State of Karnataka vs. Uma Devi (3) (2006 SCC (L&S) 753).
78.There have been several instances of different Benches of
the High Courts not following the judgments/orders of
coordinate and even larger Benches. In some cases, the High
Courts have gone to the extent of ignoring the law laid down by
this Court without any tangible reason. Likewise, there have
been instances in which smaller Benches of this Court have
either ignored or bypassed the ratio of the judgments of the
larger Benches including the Constitution Benches. These
cases are illustrative of non-adherence to the rule of judicial
discipline which is sine qua non for sustaining the system. In
Mahadeolal Kanodia vs. Administrator General of W.B. [1960
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(3) SCR 578], this Court observed:
“19.If one thing is more necessary in law than any
other thing, it is the quality of certainty. That
quality would totally disappear if Judges of
coordinate jurisdiction in a High Court start
overruling one another’s decisions. If one Division
Bench of a High Court is unable to distinguish a
previous decision of another Division Bench, and
holding the view that the earlier decision is wrong,
itself gives effect to that view the result would be
utter confusion. The position would be equally bad
where a Judge sitting singly in the High Court is of
opinion that the previous decision of another
Single Judge on a question of law is wrong and
gives effect to that view instead of referring the
matter to a larger Bench. In such a case lawyers
would not know how to advise their clients and all
courts subordinate to the High Court would find
themselves in an embarrassing position of having
to choose between dissentient judgments of their
own High Court.” [Emphasis added]
79.In Lala Shri Bhagwan vs. Ram Chandra [AIR 1965 SC
1767], Gajendragadkar, C.J. Observed:
“18. … It is hardly necessary to emphasize that
considerations of judicial propriety and decorum104/128
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W.A.(MD).Nos.986 and 1261 of 2024require that if a learned Single Judge hearing a
matter is inclined to take the view that the earlier
decisions of the High Court, whether of a Division
Bench or of a Single Judge, need to be
reconsidered, he should not embark upon that
enquiry sitting as a Single Judge, but should refer
the matter to a Division Bench or, in a proper case,
place the relevant papers before the Chief Justice
to enable him to constitute a larger bench to
examine the question. That is the proper and
traditional way to deal with such mattes and it is
founded on healthy principles of judicial decorum
and propriety. It is to be regretted that the learned
Single Judge departed from this traditional way in
the present case and chose to examine the question
himself.”
80.In Union of India vs. Raghubir Singh [1989 (2) SCC 754],
R.S. Pathak, C.J. while recognizing need for constant
development of law and jurisprudence emphasized the
necessity of abiding by the earlier precedents in following
words :
“9.The doctrine of binding precedent has the merit
of promoting a certainty and consistency in
judicial decisions, and enables an organic
development of law, besides providing assurance105/128
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W.A.(MD).Nos.986 and 1261 of 2024to the individual as to the consequence of
transaction forming part of his daily affairs. And,
therefore, the need for a clear and consistent
enunciation of legal principle in the decisions of a
court.”
81. In Sundarjas Kanyalal Bhatija and others vs. Collector,
Thane [1989 (3) SCC 396], a two-Judges Bench observed as
under :
“22.. In our system of judicial review which is a
part of our constitutional scheme, we hold it to be
the duty of judges of superior courts and tribunals
to make the law more predictable. The question of
law directly arising in the case should not be dealt
with apologetic approaches. The law must be
made more effective as a guide to behaviour. It
must be determined with reasons which carry
convictions within the courts, profession and
public. Otherwise, the lawyers would be in a
predicament and would not know how to advise
their clients. Sub-ordinate courts would find
themselves in an embarrassing position to choose
between the conflicting opinion. The general
public would be in dilemma to obey or not to obey
such law and it ultimately falls into disrepute.”
82.In Dr.Vijay Laxmi Sadho vs. Jagdish [2001 (2) SCC 247],
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this Court considered whether the learned Single Judge of
Madhya Pradesh High Court could ignore the judgment of a
coordinate Bench on the same issue and held:
“33.As the learned Single Judge was not in
agreement with the view expressed in Devilal case
it would have been proper, to maintain judicial
discipline, to refer the matter to a larger Bench
rather than to take a different view. We note it
with regret and distress that the said course was
not followed. It is well-settled that if a Bench of
coordinate jurisdiction disagrees with another
Bench of coordinate jurisdiction whether on the
basis of “different arguments” or otherwise, on a
question of law, it is appropriate that the matter be
referred to a larger Bench for resolution of the
issue rather than to leave two conflicting
judgments to operate, creating confusion. It is not
proper to sacrifice certainty of law. Judicial
decorum, no less than legal propriety forms the
basis of judicial procedure and it must be respected
at all costs.”
83.In Pradip Chandra Parija and others vs. Pramod Chandra
Patnaik and others [2002 (1) SCC 1], the Constitution Bench
noted that the two learned Judges denuded the correctness of an
earlier Constitution Bench judgment in Bharat Petroleum
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Corpn. Ltd. vs. Mumbai Shramik Sangha [2001 (4) SCC 448]
and reiterated the same despite the fact that the second
Constitution Bench refused to reconsider the earlier verdict and
observed:
“3.We may point out, at the outset, that in Bharat
Petroleum Corpn. Ltd. vs. Mumbai Shramik
Sangha (2001 (4) SCC 448) a Bench of five
Judges considered a somewhat similar question.
Two learned Judges in that case doubted the
correctness of the scope attributed to a certain
provision in an earlier Constitution Bench
judgment and, accordingly, referred the matter
before them directly to a Constitution Bench. The
Constitution Bench that then heard the matter took
the view that the decision of a Constitution Bench
binds a Bench of two learned Judges and that
judicial discipline obliges them to follow it,
regardless of their doubts about its correctness. At
the most, the Bench of two learned Judges could
have ordered that the matter be heard by a Bench
of three learned Judges.
***
5.The learned Attorney-General submitted that a
Constitution Bench judgment of this Court was
binding on smaller Benches and a judgment of108/128
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W.A.(MD).Nos.986 and 1261 of 2024three learned Judges was binding on Benches of
two learned Judges — a proposition that learned
counsel for the appellants did not dispute. The
learned Attorney-General drew our attention to the
judgment of a Constitution Bench in
SubCommittee of Judicial Accountability v. Union
of India (1992 (4) SCC 97) where it has been said
that “no coordinate Bench of this Court can even
comment upon, let alone sit in judgment over, the
discretion exercised or judgment rendered in a
cause or matter before another coordinate
Bench” (SCC p. 98, para 5). The learned Attorney-
General submitted that the appropriate course for
the Bench of two learned Judges to have adopted,
if it felt so strongly that the judgment in
Nityananda Kar (1991 Supp. (2) SCC 506) was
incorrect, was to make a reference to a Bench of
three learned Judges. That Bench of three learned
Judges, if it also took the same view of Nityananda
Kar, could have referred the case to a Bench of
five learned Judges.
6.In the present case the Bench of two learned
Judges has, in terms, doubted the correctness of a
decision of a Bench of three learned Judges. They
have, therefore, referred the matter directly to a
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Bench of five Judges. In our view, judicial
discipline and propriety demands that a Bench of
two learned Judges should follow a decision of a
Bench of three learned Judges. But if a Bench of
two learned Judges concludes that an earlier
judgment of three learned Judges is so very
incorrect that in no circumstances can it be
followed, the proper course for it to adopt is to
refer the matter before it to a Bench of three
learned Judges setting out, as has been done here,
the reasons why it could not agree with the earlier
judgment. If, then, the Bench of three learned
Judges also comes to the conclusion that the
earlier judgment of a Bench of three learned
Judges is incorrect, reference to a Bench of five
learned Judges is justified.
[Emphasis supplied]
84.In State of Bihar vs. Kalika Kuer and others [2003 (5) SCC
448], the Court elaborately considered the principle of per
incuriam and held that the earlier judgment by a larger Bench
cannot be ignored by invoking the principle of per incuriam
and the only course open to the coordinate or smaller Bench is
to make a request for reference to the larger Bench.
85.In State of Punjab vs. Devans Modern Breweries Ltd. [2004
(11) SCC 26], the Court reiterated that if a coordinate Bench
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does not agree with the principles of law enunciated by another
Bench, the matter has to be referred to a larger Bench.
86.In Central Board of Dawoodi Bohra Community vs. State of
Maharashtra [2005 (2) SCC 673], the Constitution Bench
interpreted Article 141, referred to various earlier judgments
including Bharat Petroleum Corpn. Ltd. vs. Mumbai Shramik
Sangha (supra), Pradip Chandra Parija and others vs. Pramod
Chandra Patnaik and others (supra) and held that “the law laid
down in a decision delivered by a Bench of larger strength is
binding on any subsequent Bench of lesser or co-equal strength
and it would be inappropriate if a Division Bench of two
Judges starts overruling the decisions of Division Benches of
three Judges. The Court further held that such a practice would
be detrimental not only to the rule of discipline and the doctrine
of binding precedents but it will also lead to inconsistency in
decisions on the point of law; consistency and certainty in the
development of law and its contemporary status – both would
be immediate casualty”
87.In State of U.P. and others vs. Jeet S.Bisht and another
[2007 (6) SCC 586], when one of the Hon’ble Judges (Katju, J.)
constituting the Bench criticised the orders passed by various
Benches in the same case, the other Hon’ble Judge (Sinha, J.)
expressed himself in the following words:
“100. For the views been taken herein, I regret to
express my inability to agree with Brother Katju, J.
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W.A.(MD).Nos.986 and 1261 of 2024in regard to the criticisms of various orders passed
in this case itself by other Benches. I am of the
opinion that it is wholly inappropriate to do so.
One Bench of this Court, it is trite, does not sit in
appeal over the other Bench particularly when it is
a coordinate Bench. It is equally inappropriate for
us to express total disagreement in the same matter
as also in similar matters with the directions and
observations made by the larger Bench. Doctrine
of judicial restraint, in my opinion, applies even in
this realm. We should not forget other doctrines
which are equally developed viz. Judicial
Discipline and respect for the Brother Judges.”
88.In U.P. Gram Panchayat Adhikari Sangh vs. Daya Ram
Saroj [2007 (2) SCC 138], the Court noted that by ignoring the
earlier decision of a coordinate Bench, a Division Bench of the
High Court directed that parttime tube-well operators should be
treated as permanent employees with same service conditions
as far as possible and observed :
“26.Judicial discipline is selfdiscipline. It is an
inbuilt mechanism in the system itself. Judicial
discipline demands that when the decision of a
coordinate Bench of the same High Court is
brought to the notice of the Bench, it is to be
respected and is binding, subject of course, to the112/128
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correctness of the decision and the permissible
course then open is to refer the question or the
case to a larger Bench. This is the minimum
discipline and decorum to be maintained by
judicial fraternity.”
89.It is interesting to note that in Coir Board, Ernakulam vs.
Indira Devi P.S. [1998 (3) SCC 259], a two-Judges Bench
doubted the correctness of the sevenJudges Bench judgment in
Bangalore Water Supply & Sewerage Board vs. A.Rajappa
[1978 (2) SCC 213] and directed the matter to be placed before
Hon’ble the Chief Justice of India for constituting a larger
Bench. However, a three-Judges Bench headed by Dr. A.S.
Anand, C.J., refused to entertain the reference and observed
that the two-Judges Bench is bound by the judgment of the
larger Bench – Coir Board, Ernakulam, Kerala State vs. Indira
Devai P.S. [2000 (1) SCC 224].
90.We are distressed to note that despite several
pronouncements on the subject, there is substantial increase in
the number of cases involving violation of the basics of judicial
discipline. The learned Single Judges and Benches of the High
Courts refuse to follow and accept the verdict and law laid
down by coordinate and even larger Benches by citing minor
difference in the facts as the ground for doing so. Therefore, it
has become necessary to reiterate that disrespect to
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W.A.(MD).Nos.986 and 1261 of 2024
constitutional ethos and breach of discipline have grave impact
on the credibility of judicial institution and encourages chance
litigation. It must be remembered that predictability and
certainty is an important hallmark of judicial jurisprudence
developed in this country in last six decades and increase in the
frequency of conflicting judgments of the superior judiciary
will do incalculable harm to the system inasmuch as the courts
at the grass root will not be able to decide as to which of the
judgment lay down the correct law and which one should be
followed.
91.We may add that in our constitutional set up every citizen is
under a duty to abide by the Constitution and respect its ideals
and institutions. Those who have been entrusted with the task
of administering the system and operating various constituents
of the State and who take oath to act in accordance with the
Constitution and uphold the same, have to set an example by
exhibiting total commitment to the Constitutional ideals. This
principle is required to be observed with greater rigour by the
members of judicial fraternity who have been bestowed with
the power to adjudicate upon important constitutional and legal
issues and protect and preserve rights of the individuals and
society as a whole. Discipline is sine qua non for effective and
efficient functioning of the judicial system. If the Courts
command others to act in accordance with the provisions of the
Constitution and rule of law, it is not possible to countenance
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violation of the constitutional principle by those who are
required to lay down the law.
92.In the light of what has been stated above, we deem it
proper to clarify that the comments and observations made by
the two-Judges Bench in UP State Electricity Board vs. Pooran
Chandra Pandey (supra) should be read as obiter and the same
should neither be treated as binding by the High Courts,
Tribunals and other judicial foras nor they should be relied
upon or made basis for bypassing the principles laid down by
the Constitution Bench.
16.As per the principles enunciated by the Hon’ble Supreme
Court, it is clear that High Court cannot sit in appeal in an
earlier order passed by it in the same matter, which has already
attained finality and set aside that order. Further, the doctrine of
precedent is well explained by observing that a coordinate
Bench of the High Court is bound by another coordinate Bench
where the order has attained finality, and judicial discipline has
to be maintained in this regard.”
60.28. When that being so, the Division Bench Judgment cannot be
doubted by the single bench and even if it is doubted, the lesser forum of
single Bench at the most can refer the matter for a larger forum, i.e., Full
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Bench. Therefore assuming the jurisdiction and to declare such a Division
Bench Judgment on the same issue as a nullity one cannot be approved
under the scrutiny of law by taking into account of the celebrity principle of
judicial discipline by following the judicial precedents.
60.29. Therefore, we do not have any hesitation to hold that, the
approach and conclusion reached by the writ court in allowing the said writ
petition by declaring the Division Bench Judgment, dated 28.04.2015 as a
nullity one is absolutely unlawful and unjustifiable, therefore the Judgment
impugned is liable to be set aside.
61. It is foremost to be noted that, exactly the same issue in a similar
litigation has been seized of by the Hon’ble Supreme Court and it is pending
even till date. In fact the order of stay granted by the Hon’ble Supreme
Court in SLP (Civil) No.33137 of 2014, dated 12.12.2014 was sought to be
vacated, for which, I.A.No.1 of 2015 was filed before the Hon’ble Supreme
Court. The said Interlocutory Application was disposed by the Hon’ble
Supreme Court by order, dated 26.02.2021 by passing the following order :
“1. The interlocutory application was filed on 7
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W.A.(MD).Nos.986 and 1261 of 2024December 2015 for vacating the interim order
dated 12 December 2014. The contents of
paragraph 4 of the interlocutory application would
indicate that this was in view of the fact that
certain ceremonies were to take place from 15 to
18 December 2015. The basis of the interlocutory
application does not survive. Hence, the
interlocutory application is disposed of as
infructuous.
2. List the Civil Appeal for final disposal in
accordance with its turn.”
62. In fact, the SLP (Civil) No.33137 of 2014 has been converted
into Civil Appeal No.4543 of 2017 and the same is still pending.
63. In this context, a decision of the Hon’ble Supreme Court in 1995
Supp (1) SCC 461 in the matter of Vishnu Traders v. State of Haryana can
be usefully referred to with the following passage :
“3. In the matters of interlocutory orders, principle
of binding precedents cannot be said to apply.
However, the need for consistency of approach and
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W.A.(MD).Nos.986 and 1261 of 2024respecting similar causes and the desirability to
eliminate occasions for grievances of
discriminatory treatment requires that all similar
matters should receive similar treatment except
where factual differences require a different
treatment so that there is assurance of consistency,
uniformity, predictability and certainty of judicial
approach.”
64. Hence, even the Interlocutory orders in such kind of matters
granted by the highest court of land by seizing of the matter at their
jurisdiction and disposal, shall be respected to by all courts in the country.
Knowing well that the Hon’ble Supreme Court has seized the matter and
granted interim order of stay of the practice of this rolling over on the
plantain leaves in a related case arising from Karnataka High Court granted
the stay of the 500 years old practice and the same has been quoted mainly
by the Division Bench in its order dated 28.04.2015, the writ court should
have laid off their hands and dismissed the said writ petition by allowing
the writ petitioner to agitate the issue against the Division Bench Judgment
of the year 2015 in the manner known to law.
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65. However, the writ court having assumed the jurisdiction in its
domain since has gone to the extent of declaring a Division Bench
Judgment as a nullity one, such an approach on the part of the writ court
cannot be approved by this Court. Therefore the impugned Judgment for all
these reasons and discussions herein above made is liable to be set aside.
66. Conclusion :
66.1. The practice of rolling over on the left over plantain leaves after
partaking the meals at Nerur Sri Sadhasiva Brahmendral Samathi / Temple
or in that locality at Karur District may be a religious practice or the practice
of a particular religious denomination which may not hit either under public
order or health within the meaning of Article 25 of the Constitution.
66.2. However, such a practice, whether would go against the public
morality or constitutional morality is a matter to be gone into, which, cannot
be decided by this Corut at this juncture, in view of the issue in a similar lis
arising out of the High Court of Karnataka having been seized off and
pending with an order of stay before the Hon’ble Supreme Court of India in
Civil Appeal No.4543 of 2017 in the matter of State of Karnataka and
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W.A.(MD).Nos.986 and 1261 of 2024others v. Adivasi Budakattu Hitarakshana Vedike Karnataka and others.
66.3. At the same time, since the Division Bench Judgment made in
W.P.(MD).No.7068 of 2015, dated 28.04.2015 in the matter of V.Dalit
Pandiyan v. Chief Secretary of Tamil Nadu and others, has already attained
the finality and being the Judgment of a higher forum of the High Court
(Division Bench), the same since cannot be nullified by a lesser forum
(single Bench), the decision that has been made in that regard by the writ
court through the impugned order cannot be approved by this Court.
66.4. For all these reasons, the impugned order, dated 17.05.2024
made in W.P.(MD).No.10496 of 2024 is set aside. Parties can await the
ultimate decision to be rendered by the Hon’ble Supreme Court in the
pending Civil Appeal No.4543 of 2017. Till such time, the practice of
rolling over on the left over plantain leaves after partaking the meals at
Nerur, Karur District shall not be permitted by the State and District
Administration.
67. To the extend indicated above, both these writ appeals are
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W.A.(MD).Nos.986 and 1261 of 2024allowed. No costs. Consequently, connected miscellaneous petitions are
closed.
(R.S.K., J.) (G.A.M., J.)
13.03.2025
Index : YesSpeaking Order : Yes
Neutral Citation : Yes
tsvn
To
1. The District Collector
District Collector Office
Karur District.
2. The Revenue Divisional Officer
Revenue Divisional Office,
Karur District.
3. The Tahsildar
Taluk Office, Manmangalam Taluk,
Karur District.
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4. The Superintendent of Police
Office of Superintendent of Police,
Karur District.
5. The Inspector of Police
Vanagal Police Station,
Karur District.
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R.SURESH KUMAR, J.
AND
G.ARUL MURUGAN, J.
tsvn
Common Judgment in
W.A.(MD).Nos.986 and 1261
of 2024
13.03.2025
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