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Our decision that the institution is appurtenant to a mutt and forms part of it can in no way affect the rights of the deity to the properties owned by it and the rights of the Hindu public to worship direct subject to the regulations prescribed by the Pariyaya Swamiyar for the time being.

16. Mr. Nambiar contends that under Sub-clause (2) of Section 84 of the said Act any person affected by a decision under Sub-section (1) may within one year apply to the Court to modify or set aside such decision but subject to the result of such application the order of the Board shall be final and no such application having been made to the Court either to modify or set aside the order of the Board that Sri Krishna Devaru temple at Shivalli, Udipi, is not a temple as defined in the Madras Hindu Religious Endowments Act has become final under Sub-section (3) of Section 84. Lastly it was contended that the temple is an appurtenant to the mutt. We have already noticed the definition of the temple in Section 2 of the Act of 1947 as amended by the Madras Act XIII of 1949. That definition is exactly the same as the one contained in Section 9(12) of Act II of 1927. Therefore if the institution is not a temple as defined in Section 9(12) of the Madras Act II of 1927, learned Counsel for the appellants wants the Court to hold that it cannot be a temple as defined in Section 2(1) of Act V of 1947. It is further argued that under Section 103 of the Madras Act XIX of 1951 which replaced Act II of 1927 all decisions made or proceedings taken under the earlier Act shall have effect subject to the provisions of Clause (d) of the same section. Section 103(a) and (b) confirms and validates all proceedings taken and decisions made under Act II of 1927 as if they had been taken or made under Act XIX of 1951. Such being the case the point of view put forward is that as the temple in question is not one as defined in the Madras Act II of 1927 and as such could not also be one as defined in the subsequent Act namely, in Section 2(2) of Act V of 1947 a decision to that effect under Section 84 of Act II of 1927 would be binding under the provisions of Section 103 of Act XIX of 1951. The answer to this argument is contained in Exhibit A-6 itself where the decision that the temple is not one as defined in Act II of 1927 is circumscribed and restricted by the finding that the rights of Hindu public to worship direct subject to the regulations prescribed by the Pariyaya Swamiar for the time being are in no way affected. We have therefore to read the decretal order in Exhibit A-7. We can call it as such by referring to the judgment contained in Exhibit A-6. Reading these two documents together we find that there is no disharmony at all and it comes to this that though the temple in question is an appurtenant to a mutt as is clear from the origin of the temple the rights of the Hindu public to worship direct have been maintained by that decision. I may also note here that Rules have been framed under the Madras Temple Entry Authorisation Act (V of 1947) by the Government and they are intended for giving effect to the provisions of the enactment. According to these rules certain conditions have to be complied with for exercising the unrestricted right of worship in the temple. It is unnecessary to dwell on this aspect' at any length as nobody can worship in a temple if he does not conform to the rules framed under the Act.

34. In the circumstances stated above His Excellency the Governor of Madras hereby decides under Section 6 of the Madras Temple Entry Authorisation Act, 1947 (Madras Act V of 1947) that Sri Krishna temple in South Kanara district is a temple defined in the said Act.

35. Thereupon the present suit has been filed within six months of the date of the above Government Order and the plaintiffs ask for two reliefs it the suit viz., (1) for a declaration that the suit institution is not a temple as defined in the Act; and (2) for setting aside the above-mentioned Government Order. The plaintiffs are the spiritual heads of six out of eight Maths popularly known as Ashta Maths of Udipi. The heads of the remaining two Maths-Phalimar Math and Krishnapur Math-are impleaded as defendants 2 and 3, the Government of Madras being arrayed as the 1st defendant. The contention of the plaintiffs is that the Sri Krishna temple is only a shrine or chapel attached to the ancient Math founded by Sri Madhvacharya of whom the plaintiffs and defendants 2 and 3 claim to be spiritual descendants. According to the allegations in the plaint Sri Madhvacharya has made Udipi his abode and gathered round him disciples for the propagation of the Dwaita system of thought and the abode of the teacher and his disciples came to be called a Math. He ordained eight among his disciples as Bala Sanyasis and found the Ashta Maths of Udipi. These disciples had to reside in the Math and engage themselves in the study and propagation of religion. The images of Sri Krishna now worshipped in the temple was acquired by Madhvacharya from a lump of gopichandanam brought by the sailors of a native craft which had got stranded near Malpe which is about 3 miles from Udipi. It was consecrated and installed by Sri Madhvacharya in his Math at Udipi and he worshipped it as his Ishta Devata. He ordained that the worship of his Ishta Devata should be conducted by one or other of his eight disciples, who had their residence in the Math itself both during the lifetime of the teacher and for a considerable period thereafter. In course of time, the system of worship by rotation (Paryaya) came into vogue. The Paryaya Swami occupies the Gadi of Madhvacharya and has the right of precedence over other Swamis. He has the incontestable right to exclude anybody from Sri Krishna Temple during the period of Paryaya. He conducts worship from out of the income of his individual Math as also from out of the income of the suit institution. The essential agamic ritual, the traditional structure and the mode of worship which are characteristic features of a temple are not to be found in the suit institution. It is not a place dedicated to or, for the benefit of, or used as of right by the Hindu community in general as a place of public religious worship. The status of the institution had been enquired into by the Hindu Religious Endowments Board in its proceedings, O.S. 472 of 1936 and the Board has held by its order No. 3336-B dated 7th December, 1937, that the institution is not a temple but is a Math and the Government of Madras are not entitled to go behind that order which has become final. The suit institution being a denominational private shrine appurtenant to a Math, Madras Act V of 1947 will not apply to such an institution under Article 26 of the Constitution of the India.

62. The next contention put forward by the plaintiffs is that by reason of the order of the Hindu Religious Endowments Board having become final the Government cannot now apply the Temple Entry Authorisation Act to this institution on the foot that it is a public temple. But the scope of the order Exhibit A-6 does not lend support to any such contention. They were proceedings under Section 84 of Hindu Religious Endowments Act started on an application filed by the trustees of the suit shrine. No body appeared to contest and the decision was arrived at solely on the uncontradicted evidence adduced by the trustees. The Commissioners placed strong reliance on the evidence of Sri A. Lakshminarayana Rao, who was the then Chairman of the Udipi Municipality, and the President of the Shivalli Temple Committee of Udipi Taluk and whose residence was about a furlong from the suit institution, that the public have a right of access to the temple for worship subject to regulations prescribed by the Paryaya Swami. On the strength of the evidence of this witness the Board held that the members of the Hindu Public admittedly have a right of worship therein and made it clear that their decision that the institution is appurtenant to a mutt and forms part of it in nowise affected the right of the Hindu public to worship subject to the regulations prescribed by the Paryaya Swami for the time being. This finding of the Board making the suit institution a place which is used as of right as a place of public religious worship by the Hindu community or any section thereof is enough for the application of the provisions of Madras Act V of 1947 as amended by Act XIII of 1949. Therefore, the order of the Board does not in any way preclude the Government from applying the provisions of the Temple Entry Act to this place found to have been used as of right as a place of public religious worship by the Hindu community or any section thereof.

63. The final contention of the plaintiffs is that in resisting this application of the provisions of the Temple Entry Authorisation Act they are protected by Article 26 of the Constitution of India. Article 26 deals with a special aspect of the subject 'religious freedom' dealt with under Article 25. The right guaranteed under Article 25 is an individual right, while the right guaranteed under Article 26 is the collective right of a religious denomination, Ratilal Panachand v. State of Bombay . Under this article every religious denomination or sect is given a right to manage its own affairs in matters of religion, e.g., Gowdasaraswaths Brahmin community as held in Devaraja Shenoy v. State of Madras . There is no dispute that the Shivalli Brahmin community which is in control of this temple is a religious denomination as has been found in Lakshmindra Theertha Swami v. Commissioner, H.R.E., Madras (1952) 1 M.L.J. 557 and that the term "matters of religion" would take in also religious practices as laid down in Commissioner, H.R.E. Board v. Shirur Mutt (1954) 1 M.L.J. 596. It is even then doubtful however whether within the limits laid down by their Lordships of the Supreme Court in Commissioner, H.R.E., Board v. Shirur Mutt (1954) 1 M.L.J. 596, this mode of practising of untouchability can be construed as a matter of religion; secondly, whether the prohibition of this practice far from being an interference with religious freedom would not be covered by the exceptions laid down in the opening words of Article 26, viz., "subject to public order, morality and health." Article 17 formally declares that untouchability is abolished and its practice in any form is forbidden. The provision in the concluding part of Article 17 that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law, contemplates laws making such enforcements punishable as an offence. As instances of laws making enforcement of disabilities arising out of untouchability as punishable offences see The West Bengal Hindu Social Disabilities Removal Act, 1948, The United Provinces Removal of Social Disabilities Act, 1947, The Bombay Harijan Removal of Social Disabilities Act, 1946, The Bombay Harijan Temple Entry Act, 1947, The Madras Removal of Civil Disabilities Act, 1939 and The Madras Temple Entry Authorisation Act, 1947. The law referred to in this Article includes laws passed before the coming into force of the Constitution: State v. Manward . The practice of untouchability which is all that is sought to be protected under the guise of freedom to manage its own affairs in matters of religion would by reason that it would provoke public disorder and that it would be contrary to public morality enshrined in Article 17 not get protected at all. The complete abolition of untouchability was one of the visions of Mahatma Gandhi in Rama Rajya. Article 17 adopts the Gandhian ideal without any qualification and makes it a standard of public morality which cannot be violated without inviting punitive consequence. It is unnecessary however for the purpose of this suit to go into this matter further because the suit institution has been found not to be a denominational institution at all, but a public temple and therefore Article 26 does not apply. In this connection see the discussions throwing much light on the scope of Articles 25 and 26 in The State of Bombay v. Narasappa , Srinivasa Iyer v. Saraswathi Animal and Davis v. Beason (1889) 133 U.S. 333 : 33 Law. Edn., 637 Safuddin v. Moosaji , Shirur Mutt case (1952) 1 M.L.J. 551 and South India Estate Labour Relations Organisation v. State of Madras (1954) 1 M.L.J. 519.