Bombay High Court
Shree Trustee Atma Kamal ... vs Sheth Motisha Religious And Charitable ... on 21 October, 2020
Bench: S.J.Kathawalla, V.G. Bisht
Nitin 1 / 7 IAL-4787-2020-Final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 4787 OF 2020
IN
WRIT PETITION (L) NO. 2841 OF 2020
Shree Trustee Atma Kamal Labdhisurishwarji Jain
Gyanmandir Trust & Anr. ... Applicants / Petitioners
Versus
The State of Maharashtra & Ors. ... Respondents
Mr.Prafulla Shah a/w. Ms. Gunjan Shah i/b. Mr.Kayval P. Shah for the Applicants /
Petitioners.
Mr.A.A.Kumbhkoni, Advocate General a/w. Ms. P.H. Kantharia, GP, Ms.Geeta
Shastri, Addl. GP for the State.
CORAM : S.J.KATHAWALLA, &
V.G. BISHT, JJ.
DATE : 21ST OCTOBER, 2020
(THROUGH VIDEO CONFERENCING)
P.C. :
1. The above Writ Petition is fled by the Petitioners seeking directions against Respondent Nos. 1 to 3 to issue necessary orders / guidelines, allowing the Petitioners to open the Jain temples managed / administered by them as per the Standard Operating Procedures ('SOPs').
2. Petitioner No. 1 is 'Shree Trustee Atma Kamal Labdhisurishwarji Jain Gyanmandir Trust' and Petitioner No. 2 is 'Sheth Motisha Religious and Charitable Nitin 2 / 7 IAL-4787-2020-Final.doc Trust'. Both the Petitioner Trusts are public trusts registered under the provisions of the Maharashtra Public Trust Act, 1950 ('the Act'). The Temple known as T.A.K.L. GYAN MANDIR TRUST is managed by Petitioner No. 1 and the Temple known as Sheth Motisha Religious and Charitable Trust is managed by Petitioner No. 2.
3. Respondent No. 1 is the State of Maharashtra. Respondent No. 2 is the Chief Secretary, Department of Revenue and Forests, Disaster Management, Relief and Rehabilitation, and is the concerned authority who has been issuing the orders and guidelines with respect to Covid-19 pandamic. Respondent No. 3 is the Municipal Commissioner, Municipal Corporation of Greater Mumbai ('MCGM') and is the concerned authority to issue orders and guidelines in respect of and during lockdown within the limits of Municipal Corporation of Greater Mumbai. Respondent No. 4 is the Union of India through the Secretary of Ministry of Home Afairs.
4. The Petitioners have fled the above Writ Petition since they are aggrieved by the decision of the State, not to open up the religious places / places of worship for the members of the public.
5. The Petitioners have in the above Writ Petition, fled an Interim Application inter alia seeking permission to open the dining halls in Jain temples for serving Ayambil food to Jain devotees during the period of Ayambil Oil Tap i.e. from 23rd October, 2020 to 31st October, 2020.
6. According to the Petitioners, it is prescribed under the Jain religion to perform Tapascharya of Ayambil Tap for a period of nine days in a year. Ayambil Tap Nitin 3 / 7 IAL-4787-2020-Final.doc is one of the most religious 'Parv' of Jain religion and observed by Jains since time immemorial and is also described in the Jain literature known as 'Siri Siri Wal Kaha'. During this period of nine days, the Jains observe fast by having only one meal during the day i.e. vegetarian boiled food, by adding salt, without any ingredients like ghee, oil, sugar, spices, milk, green vegetables, fruits etc. This fast of Ayambil is observed by the Jain devotees to attain spiritual upliftment, by achieving victory over taste and to shed karmic bondage.
7. It is submitted that since there are special cooks who prepare the required ingredients in a special manner including diferent types of four, it is not practically possible for every devotee to prepare the same at their residence. Therefore during this period, the Petitioners and other temple trusts, engage special cooks who prepare this particular kind of special food and serve it to the Jain devotees in the dining halls of the temples, which dining halls are very huge in size. The devotees believe that this fast of Ayambil purifes the soul and they attain control over Aahar Sangana i.e. lust for food.
8. It is submitted on behalf of the Petitioners that the areas of most of the dining halls of the Jain temples range from 1000 sq.ft. to 5000 sq.ft., where the food is served free of charge for 365 days. This activity has stopped since the last seven months, in view of the pandemic. However, since the State Government has now allowed the restaurants and liquor bars to operate with 50% capacity, which includes small restaurants and bars admeasuring even 200 sq.ft., and also the trains, monorails Nitin 4 / 7 IAL-4787-2020-Final.doc and metros have become operational, it would amount to grave discrimination and injustice to the Jain devotees if they are not allowed to perform the Aayaambil Oli Anusthan i.e. having the special meal only once during the day in the dining halls admeasuring 1000 sq.ft. and above in the Jain temples listed in a separate list which is taken on record and marked 'X' for identifcation, during the nine days period between 23rd October, 2020 to 31st October, 2020.
9. It is further submitted on behalf of the Petitioners that passes will be issued on an average to only 40 devotees per hour to perform the Aayaambil Oli Anushthan, by having the special meal in the dining halls of the temples admeasuring 1000 sq.ft. and above, between 10.00 a.m. to 03.00 p.m. Therefore, not more than 200 devotees in a day will have the special meal in the dining hall of a temple. It is submitted that the entire arrangement will be taken care of and supervised by the trust, trustees, volunteers of the religious institutions by following the protocol of restaurants, to the extent applicable to the Jain devotees.
10. The Learned Advocate General appearing for the State submits that the State Government rejects the submissions made by the Petitioner and therefore the question of them granting permission as sought does not arise. He submits that at this point of time, the Government is of the view that it is not advisable to open up the temples / places of worship for the general public. The Learned Advocate General appearing for the State has also opposed the above Interim Application on the ground that if the relief as sought is granted, the same will cause congregation of people. He Nitin 5 / 7 IAL-4787-2020-Final.doc submits that the purpose sought to be achieved by the Petitioners and the Jain devotees by having the special meal in the dining hall of the Jain temples can be fully achieved if the Jain devotees are allowed to collect the special meal from the dining halls of the temples and have the same at their residence. He has tendered the SOP's applicable to restaurants and the Metro Railways.
11. We made it clear at the time of hearing of the matter and we, by this Order again make it clear, that the Court has no intention to interfere with government policies or to attempt to run / govern the government. We are conscious of the fact that the State Government, keeping in view the general interest of the members of the public, has started the process of unlocking / lifting of lockdown gradually, and we are sure that the Government will at the appropriate stage also open up the doors of the temples / places of worship for the members of the public. However, since the Government has now allowed restaurants and bars to commence their business with 50% capacity by following certain SOPs, and have also allowed passengers to commute by trains / monorail and metro service, and since the Petitioners are not wanting to form any congregation by way of procession, etc., we are of the view that not allowing the devotees of the Jain community to use the dining halls admeasuring 1000 sq.ft. and above, to perform the ritual of Ayambil Tap by 40 devotees having special meal every hour, from 10.00 a.m. to 03.00 p.m., between 23 rd October, 2020 to 31st October, 2020, by maintaining the norms of social distancing and following the applicable SOPs, will amount to grave discrimination causing injustice to the Jain devotees. On the other Nitin 6 / 7 IAL-4787-2020-Final.doc hand, allowing the Jain devotees to use the dining halls for the purpose and in the manner suggested by them, will not cause any injury or prejudice to anyone. We therefore pass the following Order :
i. The Trustees of the Jain temples, listed in a separate list submitted by the Petitioners, which is taken on record and marked 'X' for identifcation are allowed to make use of the dining halls of their temples to perform the ritual of Ayambil Tap from 23rd October, 2020 to 31st October, 2020, between 10.00 a.m. to 03.00 p.m., by allowing 40 Jain devotees per hour thereby restricting the same to 200 Jain devotees in fve hours. The Trustees are also allowed to serve boiled water to the devotees instead of bottled water. After 03.00 p.m., the dining halls shall be cleaned and thereafter closed by 04.00 p.m. ii. The Trustees of the Jain temples listed in the document marked 'X' will ensure that the protocol of restaurants is followed to the extent applicable to the Jain devotees for having the special meals in the dining hall of the temple, and that no devotee will be allowed to enter the inner portions of the temple at any point of time. iii. The Jain community will be appraised of the Order passed by this Court and of the above conditions, through appropriate means of public communication. iv. The Petitioners and / or all those in-charge of the respective temple managements will ensure fulfllment of the above conditions and will take suitable measures to ensure compliance.
v. The above Interim Application is accordingly disposed of.
Nitin 7 / 7 IAL-4787-2020-Final.doc
12. This Order will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this Order.
( V.G. BISHT, J.) ( S.J.KATHAWALLA, J. )