Bombay High Court
Dhananjay Mohan Deshmukh And Ors vs The Sub-Divisional Officer And Ors on 27 November, 2020
Author: Madhav J. Jamdar
Bench: R. D. Dhanuka, Madhav J. Jamdar
Digitally
signed by
Kanchan Kanchan V.
Mayekar
V. Date:
Mayekar 2020.11.28
14:14:43
+0530 1/18 wpst-96664-20.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 96664 OF 2020
Dhananjay Mohan Deshmukh & Ors. ... Petitioners
Vs
The Sub-Divisional Officer,
Igatpuri-Trimbakeshwar Sub-Division.
Nashik & Ors. ... Respondents
...........
Mr. Kishor Patil a/w. Mr. Nikhil Pujari for the Petitioner.
Mr. A. A. Kumbhakoni, Advocate General, Mr. P. P. Kakade, GP a/w.
Mr. Akshay Shinde, 'B' Panel and Mr. A. P. Vanarase, AGP for the
Respondent-State.
Mr. Avinash Fatangane for the Respondent No.5.
Mr. Rameshwar N. Gite for the Respondent No.6 i.e. Trimbakeshwar
Municipal Council.
..........
CORAM: R. D. DHANUKA AND
MADHAV J. JAMDAR, JJ.
DATE : 27th NOVEMBER, 2020.
(THROUGH VIDEO CONFERENCING) P. C:-
1. The matter was mentioned by the learned counsel for the Petitioners at 11.00 a.m. with a request to allow production of this matter at 12 noon. In view of extreme urgency, we granted permission to produce the papers at 12 noon.
2. After hearing for some time, we requested learned Advocate Sonali 2/18 wpst-96664-20.doc General to appear in the matter on behalf of Respondent Nos. 1 to 4 to assist this Court and kept the matter at 3.00 p.m.
3. Leave to amend to implead Trimbakeshwar Municipal Council as Respondent No. 6. Re-verification is dispensed with.
4. The Petitioners by this Writ Petition seek order and direction against the Collector to issue permission to the Respondent No.5-
Trust to carry out age old tradition of Rath yatra of Lord Tribakeshwar on the occasion of Tripurari Pournima Rath Yatra scheduled on 29th November, 2020.
5. The Petitioners are claiming to be devotees of lord Trimbakeshar and have filed this petition in their individual capacity. It is the case of the Petitioners that the Respondent No. 5 is the Trust managing the Trimbakeshar temple. The Trimbakeshwar temple is the temple of Lord Shiva and is one of the 12 Jyotirlingas situated all over India. All the 12 Jyotirlingas have a deep sancitity in all the people belonging to Hindu religion all over India. Trimbakeshwar temple is one of the such temples.
6. It is stated in the petition that the Respondent No.5 obtained Sonali 3/18 wpst-96664-20.doc due sanction from Collector, Nashik and Commissioner of Nashik and Municipal Council. It is the case of the Petitioners that even in this case, the Municipal Council as well as Commissioner have granted permission to the Petitioners to conduct the Rath Yatra proposed to be held on 29th November, 2020. On 24th November, 2020 the Respondent No.5 made application to Sub-Divisional Officer, Igatpuri, Trimbakeshwar Division, inter alia seeking permission to conduct the Rath Yatra on occasion of Tripurari Pournima which is due on 29th November, 2020. By an order dated 25th November, 2020, the Sub-Divisional Officer, rejected permission for Rath Yatra on the ground that due to Covid-19 pandemic situation all over India, no such permission could be granted. It is stated in the order that there is possibility of congression of members of public, if such Rath Yatra is allowed to be permitted on 29th November, 2020. This decision of the Sub-Divisional Officer is impugned by the Petitioners in this Petition.
7. Learned counsel for the Petitioners invited our attention to some of the exhibits annexed to the petition to show that Municipal Council as well as the Commissioner of Police have granted permission. However, the Sub-Divisional Officer has refused to grant Sonali 4/18 wpst-96664-20.doc permission. It is submitted that for last several decades the Respondent No.5 has been conducting such Rath Yatra on the eve of Tripurari Pournima. The Petitioners are ready and willing to take all precautions including maintaining social distance and in compliance with all the SOPs issued by the State Government in these regards.
8. The matter was argued at length by all the parties present before this court. The Petitioners submitted points for consideration before this court. It is stated in the points for consideration that the maximum numbers of persons suggested by the Trust will be 100 or as this court may deem fit and proper. Entire road may be sealed by putting barricades on both the sides of road thereby restricting the public entry during the course of procession. On the road of procession 'no view' curtains are to be installed which has been done to some extent by the Municipal Council and Trust. It is submitted that all the conditions prescribed in the SOP would be complied with by the Petitioners. During the course of arguments.
9. Mr. Patil, learned counsel for the Petitioners submits that Rath Yatra may be permitted by permitting two priests who would pull the bullock-cart containing the deity of Lord Shiva. It is further submitted that his clients have no objection if entire area is sealed Sonali 5/18 wpst-96664-20.doc prior to such Rath Yatra proposed to be held on 29th November, 2020.
10. Learned counsel for the Petitioners placed reliance on the order of Supreme Court in Writ Petition (S) (Civil) No(s) 571 of 2020 in case of Odisha Vikas Parishad vs. Union of India and Ors. Dated 22nd June, 2020, in support of his submission that the Hon'ble Supreme Court had permitted the Rath Yatra festival in the City of Puri held by Jagannath Temple Administration subject to some safeguards provided in the order.
11. Learned counsel also placed reliance on the order passed on 2nd September, 2020 in WP-LD-VC-No.380 of 2020 in case of Viraf D.Mehta vs. The Municipal Corporation of Greater Mumbai & Ors. in support of his submission that by the said order, this court had permitted the Parsi community to offer prayers by granting permission to open fire temple at Doongerwadi on certain terms and conditions.
12. Learned counsel for the Petitioners also placed reliance on the order dated 28th August, 2020 passed in AD-HOC-WP-LD-VC-NO.350 Sonali 6/18 wpst-96664-20.doc OF 2020 in case of All India Idaara-E-Tahafuz-E-Hussainiyat vs. The State of Maharashtra and others and in support of his submission that by the said order, this court has permitted the petitioners therein to conduct Taziya procession on various terms and conditions.
13. Learned counsel for the Petitioners submits that this court may impose such conditions as this court may deem fit which would be followed by the petitioners while conducting Rath Yatra if permitted by this court on 29th November, 2020.
14. Mr. Avinash Fatangane, learned counsel for the Respondent no.5 Trust supported the case of the Petitioners and would submit that this court had granted such permission to various organizations by passing various orders. It is the question of religious sentiments of the residents of Trimbakeshwar that such Rath Yatra which is going on for several decades shall be continued to be conducted by imposing reasonable conditions. He submits that the State Government has now taken several steps to unlock the lockdown imposed by the Central Government and thereafter by the State Government by permitting to open school, colleges, markets and Sonali 7/18 wpst-96664-20.doc now even temples subject to reasonable restrictions.
15. Learned Advocate General appearing for the Respondent Nos. 1 to 4 on the other hand strongly placed reliance on the order passed by the Hon'ble Supreme Court on 13th July, 2020 in case of Shri Amarnath Barfani Langars Organisation (Regd.) & Anr. vs. Union of India and Ors. in W. P. (Civil) No. 623 of 2020 (supra). It is submitted by the learned Advocate General that number of COVID- 19 positive cases at Nashik are rising continuously and is in uncontrollable situation. He invited our attention to the impugned order passed by the Sub-Divisional Officer on 25 th November, 2020 and would submit that the application for permission made by the Respondent No.5 Trust is rejected on the ground of the current pandemic situation in the State of Maharashtra and also on the ground that there may be large congression, gathering if such permission is granted by conducting Rath Yatra.
16. Learned Advocate General strongly placed reliance on the order dated 23rd October, 2020 passed by the Aurangabad Bench of this court in Writ Petition No.7303 of 2020 in The Takht Sachkhand Shri Hazur Apchalnagar Sahib Board, Nanded vs. The Union of India Sonali 8/18 wpst-96664-20.doc and others and would submit that Aurangabad Bench of this court granted permission by which the Petitioners therein were granted permission to carry out various religious activities and religious procession on various terms and conditions imposed therein. He submits that though the Aurangabad Bench in the said order had clearly permitted that sixteen persons would board on one truck and eight persons would board another truck and same would be for the distance of 1.5 kms as was suggested in the application of the petitioner, thousands of devotees assembled on the day of such procession which was uncontrollable and totally contrary to the order passed by this court on 23 rd October, 2020 granting permission to carry out such procession. It is submitted by the learned Advocate General that the reliance placed by the Petitioners on the order passed by the Supreme Court on 22 nd June, 2020 in case of Odisha Vikas Parishad (supra) is misplaced. He submits that Hon'ble Supreme Court in the said order referred the order dated 22 nd June, 2020 modifying the earlier order relied upon by the learned counsel for the Petitioners and the Respondent No.5. He strongly placed reliance on the paragraph (6) of the said order and would submit that in view of the affidavit filed by the State of Orissa stating that it might be possible to conduct the Rath Yatra at Puri subject to certain Sonali 9/18 wpst-96664-20.doc conditions, the Supreme Court had granted such relief. In this case, the petition has been filed by four individuals.
17. Learned Advocate General thereafter placed reliance on the order passed by Division Bench of this court in case of Warkari Seva Sangh & Anr. vs. The State of Maharashtra in WP/ASDB/LD/VC No.126 of 2020 dated 30th June, 2020 rejected the said writ petition filed by the Petitioners therein inter alia praying for an order and direction to allow the Petitioners to carry out Padukas of Saint Dnyaneshwar from Wakhari to Pandharpur on various terms and conditions. He submits that though the tradition of Ashadhi Ekadashi Wari/Yatra is being followed uninterrupted for last 800 years, this court after considering the ground reality and factum of ongoing pandemic situation all over Maharashtra and more particularly in view of COVID cases rising, this court refused to permit the Petitioners that to conduct the procession so as to celebrate the tradition of Ashadhi Ekadashi Wari/Yatra on the day. This court in the said judgment distinguished the judgment of Supreme Court in case of Jaggannath Puri Yatra Mahostav.
18. Learned Advocate General would submit that the Petitioners in this case neither invoked Article 25 of the Constitution of India Sonali 10/18 wpst-96664-20.doc nor made out any case under the said Article. He submits that even otherwise under the said Article, the persons are entitled to freedom of conscience and the right to freely profess, practice, and propagate religion subject to public order, morality and health. If permission as sought by the Petitioners is granted by this court, it will violate the public order, morality and health of the local residents and other members of public.
19. Learned Advocate General placed reliance on the order passed by the Delhi High Court on 18th November, 2020 in case of Durga Jan Seva Trust vs. Govt. of NCT of Delhi in W.P.(C) 9093 of 2020 and C.M. Nos. 29347-348 of 2020 and would submit that Delhi High Court has refused to permit Chhat Puja on the ground that while religious sentiments of the all sections of the society must be respected, the right to life and health of the public at large cannot be sacrificed at the altar of a right to celebrate a festival, however, significant it may be for a particular community. This is the time to scale down to contain the infection and not to escalate the same.
20. Insofar as the submission of Mr.Patil, learned counsel for the Petitioners and Mr. Avinash Fatangane, learned counsel for the Sonali 11/18 wpst-96664-20.doc Respondent No.5 that only two priests may be permitted to pull bullock-cart and entire locality may be sealed 24 hours prior to the date of procession is concerned, learned Advocate General strongly opposed this submission made by the Petitioners on the ground that the Aurangabad Bench of this court has granted such permission though by imposing strict conditions and inspite of the undertakings given by the organizers, the fact remained that thousands of people assembled on the date of procession is totally contrary to the conditions imposed by the Aurangabad Bench. In support of this, learned Advocate General invited our attention to the video news from the mobile showing large number of congression on the date of procession. It is submitted that State Government thus cannot be allowed to face single situation by granting such permission for carrying out such procession.
21. Mr. Patil, learned counsel for the Petitioners in rejoinder reiterates his submission that the Petitioners be permitted to carry out such procession of Rath Yatra by only permitting two priests and by sealing the entire locality.
22. Mr. Avinash Fatangane, learned counsel for the Respondent Sonali 12/18 wpst-96664-20.doc No.5 also reiterates the submission made by the Petitioners and submits that permission be granted on the conditions as may be imposed by this court.
23. A perusal of the petition indicates that the writ petition has been filed by the four individuals. Though it is not in dispute that such Rath Yatra has been conducted for several decades on the eve of Tripurari Pournima, the fact remains that the ground reality cannot be the same in all the years. The court as well as the administration has to consider the ground reality on the date of considering such application and not merely the fact that the Trust had been conducting such Yatra for last several decades. If ground reality does not permit the grant of such permission on the basis of situation as on today, the permission granted in past would be of no relevance.
24. Insofar as the order passed by the Supreme Court in case of Odisha Vikash Parishad vs. Union of India and others in Writ Petition (C) No.571 of 2020 strongly relied upon by the learned counsel for the Petitioners and the Respondent No.5 is concerned, a perusal of the said order clearly indicates that the petition was filed by the Trust itself. The State Government had filed affidavit thereby Sonali 13/18 wpst-96664-20.doc agreeing to such permission being granted however on certain terms and conditions. This aspect has been clearly highlighted by the Supreme Court in the later order while dealing with the petition filed by the Shri Amarnath Barfani Langars Organisation (Regd.) & Anr. vs. Union of India and Ors. (supra). However, in this case the State Government has rejected the permission applied by the Petitioners. This petition is strongly opposed on the ground of current pandemic situation and more particularly apprehension of gathering of large congression, if such permission is granted by this court. Learned Advocate General vehemently opposes this petition also on the ground that the number of COVID patients are on rise in the City of Nashik.
25. In view of the order passed by the Supreme Court in case of Odisha Vikash Parishad vs. Union of India and others (supra) which was clarified by subsequent order the said judgment is clearly distinguishable on the facts of this case and would not assist the case of the Petitioners. Insofar as order passed by this court on 2 nd September, 2020 in case of Viraf D.Mehta vs. The Municipal Corporation of Greater Mumbai & Ors. (supra) relied upon by the learned counsel for the Petitioners is concerned, the permission was Sonali 14/18 wpst-96664-20.doc sought by the Petitioners for offering prayers on a particular day. The facts in the said writ petition were different. No case is made out by the Petitioners for granting permission to carry out Rath Yatra or procession as proposed by the Petitioners. While passing this order, this court has clarified in the said order that it shall not be treated as precedent. The said order would thus not assist the case of the Petitioners.
26. Similarly order dated 28th August, 2020 passed in AD-HOC- WP-LD-VC-NO.350 OF 2020 in case of All India Idaara-E-Tahafuz-E- Hussainiyat vs. The State of Maharashtra and others (supra) relied upon by the learned counsel for the Petitioners was also passed with different facts at hand. The said order thus would not assist the case of the Petitioners.
27. This court recently in case of Warkari Seva Sangh & Anr. vs. The State of Maharashtra (supra) refused to direct the Respondents to grant permission to carry out Padukas of Saint Dnyaneshwar from Wakhari to Pandharpur which tradition was being followed uninterrupted for last 800 years considering the ground reality and the current pandemic situation. The said order also has Sonali 15/18 wpst-96664-20.doc distinguished the order passed by the Supreme Court in case of in case of Jaggannath Puri Yatra Mahostav.
28. Insofar as the order passed by the Aurangabad Bench in case of The Takht Sachkhand Shri Hazur Apchalnagar Sahib Board, Nanded vs. The Union of India and others (supra) is concerned, the learned Advocate General invited our attention to the subsequent events taken place thereafter which clearly indicates that though various stringent conditions were imposed while this court granting permission to carry out procession at the event of Dussehra at Nanded, large number of congression had assembled totally contrary to the conditions imposed by this court on 23 rd October, 2020. We are thus not inclined to grant any relief to the Petitioners considering the ground reality today and in view of the fact that if such congression is allowed to assemble,there is possibility of affecting large number of local residents and resultantly also others in the adjoining area.
29. Delhi High Court in case of Durga Jan Seva Trust vs. Govt. of NCT of Delhi (supra) had considered a petition where permission was applied for performing Chhat Puja which is major religious Sonali 16/18 wpst-96664-20.doc festival celebrated by the people of Bihar and Eastern U.P. on an annual basis. It was the case of the Petitioners in the said writ petition that for last several years the Petitioners had been organizing such Chhat Puja on an annual basis in Kirari MCD Ground which could accommodate over 2 lakhs persons. Delhi High Court though took cognizance of the fact that such Chhat Puja for last several years was celebrated by the people of Bihar on annual basis, the High Court refused to grant such relief to the petitioner on the ground of large scale COVID cases in Delhi. It is held that the Petitioner trust should have been alive of the situation before approaching the Court for such a relief. While religious sentiments of all sections of the society must be respected, the right to life and health of the public at large cannot be sacrificed at the altar of a right to celebrate a festival, however, significant it may be for a particular community. This is the time to scale down to contain the infection and not to escalate the same. We are in respectful agreement with the views expressed by the Delhi High Court in case of Durga Jan Seva Trust vs. Govt. of NCT of Delhi (supra).
30. Article 25 of the Constitution of India though permits all persons equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion the same is subject to Sonali 17/18 wpst-96664-20.doc public order, morality and health. In our view, such congression which is apprehended by the State, if such permission is granted, it is likely that it would seriously affect the public order and health. Even if we permit the Petitioners to allow only two priests to pull the bullock-cart, we cannot ignore the apprehension of the administration for large scale congression which would violate the conditions imposed under Article 25 of the Constitution of India. This court cannot ignore the ground reality prevailing in the State as on today and more particularly, in Nashik in this case.
31. Insofar as the submission of Mr.Patil, learned counsel for the Petitioner that no prejudice would be caused if permission is granted by imposing the conditions of sealing the entire locality since 24 hours prior to the presence of large congression on the day of such Rath Yatra is concerned, such submission cannot be accepted. We cannot permit to hold Rath Yatra by directing the sealing of entire locality for 24 hours prior to such procession which would cause inconvenience to other members of public who may not be part of such procession or are not concerned for the same.
32. In our view, the petition is totally devoid of merits and is accordingly dismissed with no order as to costs.
Sonali
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33. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production by fax or e-mail of a digitally signed copy of this order.
(MADHAV J. JAMDAR, J.) (R. D. DHANUKA, J.) Sonali