R.M.SAHAI, J. - (1.)Worshippers of Hindu religion, eminent citizens of Varanasi having faith in Hinduism and Lord Shiva, Pujaris of Kashi Vishwanth temple and Shri Aadi Visheshwar, the idol himself, approached this court, by separate petitions filed under Art.226 of the Constitution against take over of management of the temple by the State Government, first by Ordinances, replaced later by Act 29 of 1983, as ultra vires and invalid as it hurt not only their religious feelings and sentiments but of Hindus in general and was violative of constitutional guarantee of religion under Arts.25 and 26 of the Constitution. Although initially petitions were directed against Ordinances and it was claimed that they had been issued without any emergency or necessity as contemplated under Art.213, but after their replacement by Act, it became academic and petitioners were permitted to challenge provisions of Act, and amend the petition. As arguments proceeded, challenge founded on freedom to practice, profess and propagate religion protected under Art.25 was given up. Thrust was confined to infringement of right of religious denomination to manage its religious affairs and administer its property in accordance with law. Attempt was also made on behalf of mahant, entitled to receive offerings and utilize it as personal property that Act was invalid as it amounted to deprivation of property without paying compensation, which was contrary to Art.300A of the Constitution.
(2.)Since it was stressed vehemently that the temple was neither a natural nor juristic person, therefore, it could not claim to be religious denomination, nor could mahant, pujaris or devotees advance the claim as none of them satisfied the test laid down in Commr. H.R.E. v. L.T. Swamiar, AIR 1954 SC 282 (better known as Shirur Math case) of being collection of individuals under same name having organisation and distinctive name, therefore, it is necessary to clear the mist in this regard at the outset. But before doing so it appears appropriate to narrate in brief about the temple itself From times immemorial there is temple of Lord Vishwanath in the city of Varanasi, presiding deity of which is known as Shri Aadi Visheshwar commanding great respect amongst Hindus all over the country. Kashi is said to be city of Shiva founded at the dawn of creation. According to 'Puranik' stories Shiva the ascetic of mountains after marrying Parvati daughter of Himalayas was fascinated with Kashi, city of light, green with gardens and shifted from Kailash Parvat to reside here which became place of Gods, where living became bliss and death attainment of eternal peace. There are many myths about origin of Linga worship. One of them is that long ago the world was tormented by famine which lasted for years. Since existence of earth and its people was threatened Brahma, the creator, requested Mritunjaya a pious and sage king who had retired from kingdom and was practising Tap (austerity) in the city of Varanasi to assume kingship on earth to restore the order. It is said Mritunjaya accepted the responsibility with great reluctance but upon condition that Gods should retire from earth and return to their place in heaven. Lord Shiva left his beloved seat in order to please his devotees and to keep Brahma's pledge to Mritunjaya. But before leaving Kashi he established Linga as emblem of himself and it is this Linga which is said to be the first Linga to have been established on earth. Another myth but most prominent in Shiva theology and most significant in the context of Kashi is the great myth of the fiery appearance of the Linga of light the 'Jyotirlinga' which pierced the three worlds as brilliant shaft of light and was witnessed by Brahma and Vishnu long ago. Diana L. Eck in her book 'Banaras City of Light', she further writes that in 'Kashi Kand' it is stated that this Linga was established by Shiva himself when he left Kashi for mountain Mandara during reign of king Divodasa Linga, thus, left became known as 'Avimukteshwar', that is 'Lord of Avimukta' as Kashi or Varanasi was known in early times by name of Avimukta. Whether 'Avimukteshwar' is the first Linga by which Lord Vishwanath was known (Ram Shanker Tripathi, the chequered history of golden temple of Kashi Vishwanath) or they were two different idols Avimukteshwar and Visheshwar (Pt. Kuber Nath Shukla in Varanasi Vaibhav) but for at least thousands of years Vishwanath has been pre-eminent Shiva Linga in Kashi 'it was a popular temple as temple of the common folk as the name "Lord of All" suggests' (Diana). Its popularity, religious or otherwise must have been widespread as it attracted wrath of famous plunderer Mohammed Ghori. 'Perhaps the strongest, if ironic indication of Visheshwar importance in the twelfth century is that it was singled out for destruction by Mohammed Ghori's Captain Qutub-ud-din Aibak in 1194' (Diana). Since then the story of temple is story of construction and desecration till it was demolished by Aurangzeb, the intolerant Moghal begot. But the idol was removed by Pujaris, who saved it from being defiled by hiding it in famous Janevapi well When peace was restored it was again installed on platform in nearby place, round which the present temple was constructed by Rani Ahilyabai Holkar, a Hindu devotee. Later on Raja Ranjit Singh of Punjab covered the temple with gold and it became known as famous golden temple of Varanasi. An inscription engraved on entrance reads, 'Arya Dharmam Tarnam'. That is those who are not Aryans are, prohibited. When temple was constructed in 1777 by Ahilyabai at the place where said symbol of Lord Shiva has been installed earlier it was donated to the presiding deity under care of Mahant Jai Ram Sharma, as is clear from the engraving on stone, 'Tadagyapat Daaptin Jairam Susharmda Vishweshwarajya Ramdaup Taram Sumandir', Since then Sewa, Puja, Bhog, etc., of the Shri Adivisheshwar was carried on by him and after him by his descendants who by usage became entitled to offerings both cash and kind, spend it towards expenses and management of temple, carry on. 'Bhandara', etc., that is feasting of pilgrims and Sadhus and utilize the balance for personal use. This custom of offerings going to Shebait, an exception to general rule of law that offerings vest in idol, appears to have been accepted by this court. It is also claimed to have been recognised in a 'firman' granted by Dara Shikoh the Mogal ruler.
(3.)Having narrated history of temple it may not be out of place to mention that Shaivism is itself considered to be religion although it is part of Hinduism, which is diverse conglomeration of doctrines. In Encyclopaedia Britannica Hinduism has been described thus, 'As a religion Hiaduism is an utterly diverse conglomeration of doctrines, cults and way of life. In principle Hinduism incorporates all forms of beliefs and worship without necessitating the selection or elimination of any'. It was approved by the Supreme Court in C. W. T. v. Shridhar (1974) 104 ITR 436. Robindra Kumar Sidhanti Shastree in his book Shaivism Through the Ages has written, 'Hinduism is distinctly different from other religions because of holding an incomparable form of Monism in accompaniment with the idea of other deities subordinate to the non-dual, supreme spirit. Every cult of the Hindus gives a particular name to this supreme spirit, holding all other Gods and Godesses as His or Her agents. Shaivism is the religion of such a cult of which Lord Shiva is the supreme spirit, pervading the entire universe with His bigger form and at the same time residing within the body of every living being with His minutest form popularly called Jivatman (soul in a body)'. He has described in detail about popularity of Shiva worship in North India, South India and Kashmir and various schools of Shiva Philosophy. Ishwer Chand Tyagi in his book Shaivism in Ancient India has written. 'Shaivism one of the ancient religions of orient, is known as the Chief religious cult of India'. Dr. Radhakrishnan in his book History of Philosophy, Eastern and Western has discussed in detail about Shaiva Sidhanta, its sources its exposition by famous teachers Meykandadeva, Arunandi, Maroiynama and Umapati and its rise 'as a monistic system of thought as distinct from ritualistic religion in Kashmir.