Udupi Sri Krishna temple if a public temple.

Per Ramaswami, J.-The shrine of Sri Krishna in Udipi surrounded by the Ashta Matams is a public temple within the meaning of section 2(1) of the Madras Act V of 1947 as amended by Act XIII of 1949. Judicial adjudications concerning the temple for a long time past has been on the footing that the institution is a public temple. All the characteristics necessary for a public temple, as laid down in several judicial decisions are present in the case of the suit temple.

The sacred literature relating to the founding of this temple establishes that it was not founded as a private shrine of Ishta Devata appurtenant to a math but only as a public temple. The inscriptions on the temple walls also show that this was not a private shrine, appurtenant to a Math but was a public institution under the general supervision of the Hindu Sovereigns of that area, who were always considered to be the supervisors of all public temples. The temple now comprises in itself all the type design features of a public temple.

The fact that the pooja in the temple is done by Yathis and not by paid Archakas or that the Samadhis of saints are found within the temple does not in any way alter the public character of the temple.

Article 26 of the Constitution of India deals with a special aspect of the subject of ‘religious freedom’ dealt with under Article 25. The right guaranteed under Article 25 is an individual right while the one guaranteed under Article 26 is the collective right of a religious denomination. The practice of untouchability cannot be protected under the guise of freedom to manage affairs in matters of religion. It will provoke public disorder and will be contrary to public morality enshrined in Article 17 of the Constitution. The freedom of religion guaranteed by Article 25 of the Constitution is itself subject to the qualifications prescribed in sub-clause (2) of that Article itself. Except denominational or family endowments or institutions, all public institutions will be within the scop of the Madras Act V of 1947 and the application of the Act to such temples is not ultra vires the Constitution.

Appeal against the decree of the Court of the Subordinate Judge of South Kanara, dated 31st March, 1951 and passed in O.S. No. 166 of 1948.

M.K. Nambiar, T. Krishna Rao and B. Krishna Rao for Appellants.

The Government Pleader (C.A. Vaidialingam) and N.S. Srinivasan for Respondents.

The Judgment of the Court was delivered by

Govinda Menon, J.-My learned brother has dealt with the historical aspect and mythological tradition of the institution in question and I do not propose to traverse the same over again for in my view, how the temple came into existence cannot be ascertained with any degree of exactitude from the mass of material most of which is mythological and is not founded on concrete facts which can be tested in the light of actuality. What we have to ascertain is whether the famous Sri Krishna temple at Udipi which is held in great reverence and sanctity not only by the followers of Madhvachariar throughout the whole of India but by all the pious Hindus, can be held to be a public temple as defined in sub-section (2) of section 2 of Act V of 1947. Exhibit B-6 is the plan of Shiyali village which shows that the temple building of Sri Krishna is on the west of Madhva Sarovar, the holy tank, and is approached by a gate from the southern side. Divided by a road from Sri Krishna temple are the temples of Sri Chandramouleswara and Sri Anantheswara which are surrounded on all sides by streets. The Astha mutts are scattered all round these temples, the Sirur mutt being the nearest to the Sri Krishna temple. What is urged before us is that the idol of Sri Krishna is installed in a mutt, the managment of which is being carried on by each of the Swamijis of the Ashta mutts for two yers in rotation within a period of sixteen years and as such the institution in which the idol of Sri Krishna has been consecrated by Madhvachariar must be held to