Madras High Court
D.L.Vasanthakumar @ vs The Chief Secretary on 16 August, 2019
Equivalent citations: AIRONLINE 2019 MAD 854, (2019) 7 MAD LJ 869
Author: S.Manikumar
Bench: S.Manikumar, Subramonium Prasad
W.P.No.24028 & 24053 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.08.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.Nos.24028 and 24053 of 2019
W.P. No.24028 of 2019
D.L.Vasanthakumar @
Veervasanthakumar .. Petitioner
Vs.
1.The Chief Secretary
Government of Tamil Nadu
Fort St. George, Chennai - 600 009
2.The Principal Secretary to Government
Hindu Religious and Charitable Endowment Department
Chennai
3.The Commissioner
Hindu Religious and Charitable Endowment
Nungambakkam High Road
Chennai - 600 034
4.The Executive Officer
Kancheepuram Srivaradharaja Perumal Temple
Kancheepuram
5.The District Collector
Collectorate Buildings
Kancheepuram .. Respondents
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W.P.No.24028 & 24053 of 2019
Prayer: Petition filed under Article 226 of the Constitution of India
seeking a Writ of Mandamus, directing the respondents 1 to 3 to extend
the time for worship the holy deity Adhi Athivaradhar at the premises of
the 4th respondent from 19.8.2019 to any other appropriate day based on
the representation of the petitioner dated 8.8.2019.
For Petitioner : Mr.N.Umapathi
For Respondents : Mr.Vijay Narayan,
Advocate General
Assisted by Mr.A.M.Maharajan
for R3 & R4 for HR&CE
Mr.E.Manoharan,
Additional Govt. Pleader
for R1 & R5
W.P. No.24053 of 2019
V.Krishnaswamy .. Petitioner
Vs.
1.State of Tamil Nadu
Rep. by Secretary to
Hindu Religious & Charitable Endowment
Secretariat, Fort St. George
Chennai - 600 009
2.State of Tamil Nadu
Rep. by Secretary to Home Department
Secretariat, Fort St. George
Chennai - 600 009
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W.P.No.24028 & 24053 of 2019
3.The Commissioner
Hindu Religious and Charitable Endowment
Nungambakkam, Chennai - 34
4.The Joint Commissioner
Hindu Religious and Charitable Endowment
Kanchipura, Kanchipuram District
5.Executive Trustee cum Executive Officer
Sri Devarajaswamy Thirukoil
Kanchipuram
6.The District Collector
Kanchipuram
7.The Superintendent of Police
Kanchipuram .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India
seeking a Writ of Mandamus, directing the respondents herein to consider
the representation of the petitioner dated 12.8.2019 and extend the
darshan of Athi Varadhar Vaibavam by a reasonable time frame
For Petitioner : Mr.B.Jagannath
For Respondents : Mr.Vijay Narayan,
Advocate General
Assisted by Mr.A.M.Maharajan
for R1, R3, R4 & R5 for HR&CE
Mr.E.Manoharan,
Additional Govt. Pleader
for R2, R6 & R7
-----
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W.P.No.24028 & 24053 of 2019
COMMON ORDER
(Order of the Court was made by S.MANIKUMAR, J.) Instant writ petitions have been filed seeking for a Writ of Mandamus to direct the respondents herein to extend the darshan time of the holy deity Adhi Athi Varadhar beyond 17.08.2019 (i.e. beyond 48 days) by considering their representations dated 08.08.2019 and 12.08.2019 respectively. Since, the issue involved in both the writ petitions is common, they are heard together and disposed of, by this Common Order.
2. Mr.D.L.Vasanthakumar @ Veeravasanthakumar, petitioner in W.P.No.24028 of 2019 is the President of South India Hindu Maha Sabha a Society having been registered as Sl.No.433/2014 under the Tamil Nadu Societies Registration Act 1975.
3. Petitioner has further submitted that the Holy Athi Vardhar Deity has been taken out from the sacred pool at Kancheepuram Sri Varadharajaswamy Temple and kept in Vasantha Mandapam, for the public to worship, for a period of 48 days. According to him, when he visited the temple to worship the deity on 28.07.2019, he could not http://www.judis.nic.in 4/42 W.P.No.24028 & 24053 of 2019 worship the deity, as there were about 5 lakh people, visiting the temple daily for worshiping the deity, Holy Athi Varadhar. Due to heavy rush, public, old aged people, could not have easy access to worship the God. Persons who eagerly visited the temple started returning to home with heavy heart and thus the same has affected his right of religious practice of freedom of worship. According to the petitioner every person is entitled to worship the deity. The devotees are affected and put to great mental agony and physical hardship.
4. Petitioner has further submitted that in the year 1703, the sacred pool (Pushkarani) has been cleaned whereby the temple administration found Adi Athi Varathar in the sacred pool, which is available in the inscription. In the year 1937, the 2nd respondent Devasthanam passed a resolution under the Chairmanship of A.Lakshmikumar Dhathachariar and R.Varadhachariar. The sacred pool is called as Ananthasaras, which became dry, due to which odour came from it. Kancheepuram Municipality issued notice dated 08.03.1937 to the Devasthanam stating that for the past 45 years the sacred pool has not been cleaned and therefore the deity of Lord Athi Varathar be taken out http://www.judis.nic.in 5/42 W.P.No.24028 & 24053 of 2019 from the sacred pool and kept in the Vasantha Mandapam for Pooja and based on the pooja, the amounts donated by the public in the temple plate would be utilized for the purpose of cleaning the sacred pool.
5. Thereafter, according to the petitioner, the deity of Lord Athi Varathar has been taken out from the sacred pool in the year 1979 after a period of 42 years and around 13,000 devotees worshiped the lord. Thereafter, considering the heavy rush, the visiting days has been increased from 40 to 48 days i.e. extending to 8 days (1 MANDALAM). Therefore, according to the petitioner, there is no strict Agama Rules to show that the deity should be available for darshan only for 48 days.
6. According to the petitioner, originally, the deity has been taken out in the year 1937 and after a period of 42 years the deity has been taken out from the sacred pool. In the year 1979, about 13,000 devotees worshiped the deity, whereas now more than five lakhs devotees are daily worshiping the deity and therefore respecting the sentiments of people all the willing persons should be allowed to worship the deity by extending the time.
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7. There is no universal or Agahama Rule that the deity would be taken out from the sacred pool once in 40 years and would be available only for 48 days for worship. Taking into consideration the huge crowd and for the benefit of devotees, it is just and necessary to extend the time limit from 48 days to any other appropriate days, as may be fixed by the respondents.
8. In this regard, petitioner made a representation dated 08.08.2019, to the Chief Secretary to the Government of Tamil Nadu, first respondent herein, in person, on 08.08.2019 and the same was duly received and acknowledgment was also issued to that effect, but no steps have been taken so far, by the first respondent. Aggrieved by the same and having no other efficacious and alternative remedy, the petitioner was constrained to approach this Court under Article 226 of the Constitution of India seeking extension of the time limit from 48 days to any other appropriate days, as may be fixed by the respondents.
9. Mr.V.Krishnaswamy, petitioner in W.P.No.24053 of 2019 is a practicing Advocate and a member of Vishwa Hindu Parishad (Tamil Nadu) http://www.judis.nic.in 7/42 W.P.No.24028 & 24053 of 2019 and currently its State Vice President. He is practicing in Thanjavur District Court, as well as in this Court. Petitioner is a devout Hindu and has been espousing the cause of Hindu Temples, society etc. Petitioner has done Kumbabishekam for the Lord Varadharajaswami temple in his native village in Tirupoonthuruthy, Thanjavur District. Petitioner has helped in maintenance of many temples in Thanjavur District and was involved in the celebration of 200 years of Thanjavur Court in 2007. According to the petitioner he was a Government Pleader (HR & CE) for Thanjavur District previously and therefore, reasonably acquainted with religious affairs and the laws relating to HR & CE. Petitioner has come forward with the instant Writ Petition in the larger interest of Hindu Devotees and Society.
10. Petitioner has further submitted that Athi Varadhar Vaibavam which is being celebrated in Kanchipuram, Sri Varadarja/Devaraja Temple is a very rare and fascinating occasion. It is believed that the idol was consecrated by Lord Brahma himself pursuant to his yaga at Hastigiri. This is stated to have been learnt from the texts of Hastigiri Mahatmya and Kanchi Mahatmya, the former of which is stated to be a part of http://www.judis.nic.in 8/42 W.P.No.24028 & 24053 of 2019 Brahmanada Purana. Various Alwars and Saint Ramanuja are stated to have worshiped and had darshan of the said Lord. It is stated that this deity is made of a fig tree and is now referred as Athi Varadhar. It is also learnt that the name Athi Varadhar is actually in reference to the place Hastigiri, which means elephant hill, where the temple is located.
11. Petitioner has further submitted that it is learnt through scholars and from elders that this Athi Varadhar, who was the original moolavar of the temple was immersed in the Ananthasaras, which is a tank associated with the temple, due to threats of Muslim invasion. There are locals who hold other beliefs connected with the immersion of Varadhar and the festival pertaining to rising of Athi Varadhar. There are also certain inscriptions in the city of Kancheepuram to the days of Vijayanagara Kingdom about the same. After the immersion of Athi Varadhar, the original moolvar, sometime later, the temple trustees and the sthanikas have consecrated a stone idol of Varadhar, which is the present moolavar, which has been worshiped for a period of more than 300 years. This Moolavar is stated to have been taken from the temple called Pazhaya Seevaram. The deity of the temple at Pazhaya Seevaram http://www.judis.nic.in 9/42 W.P.No.24028 & 24053 of 2019 resembled the Moolavar in the temple at Kancheepuram. From the puranic references, it can be related that this Athi Varadhar is the first consecrated idol in the history of mankind and therefore holds a special place among all the deities.
12. Petitioner has further submitted that periodically, Athi Varadhar would be taken out from the Ananthasaras and a 48-day festival was celebrated. The recorded years when the festival was celebrated are 1892, 1937 and 1979. Petitioner has further submitted that the Thathachariar, who were traditionally the Trustees of the temple until 1991 would be aware of the same. Petitioner has further submitted that, contrary to the popular belief, Athi Varadhar festival has not been conducted once in 40 years but in the gap of 45 years, 42 years, etc. From his enquiries with the experts and learned scholars in religion, Vaishnavism, and Agamas, the petitioner came to know that the festival is not something that is derived from the Puranas or Agamas and has been a recent custom. It is further submitted that there is no injunction from the religious perspective from reducing or increasing the days of the festival. http://www.judis.nic.in 10/42 W.P.No.24028 & 24053 of 2019
13. Petitioner has further submitted that Athi Varadhar Vaibavam of 2019 has been an extraordinary spectacle. Every day, lakhs and lakhs of devotees have thronged to visit the temple and have darshan of the deity. It is estimated that more than 80 lakhs had darshan so far and on some days more than 4 lakh visited the temple. Further, it is anticipated that, before the completion of the festival, close to 1 crore people would have had darshan of Athi Varadhar. It is further submitted that due to the short time and the logistical constraints, the organisation of the festival has been an immense challenge to all the stake holders. Further, it is anticipated that during the last week of darshan, the crowd is expected to be much higher considering that the festival is coming to a close. It is further submitted that there are crores of devotees eager to have darshan of Athi Varadhar from various parts of Tamil Nadu, neighbouring States and from abroad too. Further, the population of India has grown multi fold since 1937 and 1979, the Hindu society has also grown and there are crores of people, eager to participate in the festival especially due to the awareness created by the mass media and social media. It is needless to state that the efforts of the government in publicising the event has also been a major contributing factor in this.
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14. Petitioner has further submitted that the authorities in charge of the festival have been flexible with the timings to accommodate the devotees by extending the darshan upto 2 AM. Further, there are no poojas are performed to Athi Varadhar as per agamas and there is only deepa aarathana and archana for the benefit of devotees and neivedya. Therefore, considering the above said facts, especially that there are crores of devotees still waiting to catch a glimpse of Sri Athi Varadhar, which many consider to be a once in a lifetime possibility and that there are no religious prescriptions prohibiting it and the fact that there will a further surge in the crowd within a short span of time, posing an extremely challenging situation for the organisers of the festival, and considering the safety of the devotees, it is beneficial if the festival time is extended beyond 48 days.
15. Petitioner further submitted that the issue of whether the Athi Varadhar should be immersed at all, has been raised by several saints and debates and discussions have been on-going on the issue amongst various scholars and many religious pontiffs. It is further submitted that there can http://www.judis.nic.in 12/42 W.P.No.24028 & 24053 of 2019 be no quarrel that for the benefit of crores and crores of devotees, the festival can be extended by a few days.
16. Petitioner has further submitted that while it was hoped by many devotees and the petitioner that the festival may be extended, the District Collector has now announced in the press that the last day of the festival shall be August 16th and the Athi Varadhar will be reimmersed on 17.08.2019. Petitioner has further submitted that firstly, the District Collector has no authority to take decision in this regard, and it is for the HR & CE Department or the Trustees of the temple who generally have say in the matter, and the District Collector can only give advice as to the arrangements to be made. According to the petitioner, the temple is administered under a scheme framed by this Court in A.S.No.175 of 1934 in the year 1941 and presently, the Scheme is under modification before the department and therefore an Executive Officer in the rank of Assistant Commissioner is functioning as the Executive Trustee of the temple and no decision has been taken by the concerned officer, till date.
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17. Petitioner has further submitted that worshiping Athi Varadhar, is a fundamental right under Article 25 of the Constitution and under Article 14 which provides for equality and equal protection. Further on a conjoined reading of Articles 25 and 14, there should be equal opportunity for all the devotees to worship Athi Varadhar and extension of time will facilitate many more devotees to worship and make it safer for all. Further, considering that there is no religious injunction prohibiting the same, there can be no impediment in extending the darshan time of Sri Athi Varadhar beyond 48 days.
18. When the matter was taken up today (16.08.2019) for admission, Mr.M.Maharaja, learned Special Government Pleader (HR & CE) appearing for the HR & CE has filed the counter affidavits on behalf of the third respondent in both the writ petitions. Paras 3 to 11, which is in verbatim common in both the writ petitions are extracted hereunder :
"3. It is submitted that Arulmighu Devarajaswamy Thirukkovil, Kanchipuram is a Temple listed under Section 46(iii) of the Tamil Nadu Hindu Religious & Charitable Endowment Act, 1959 (hereinafter referred to as the Act) and is http://www.judis.nic.in 14/42 W.P.No.24028 & 24053 of 2019 administered by the Assistant Commissioner/Executive Trustee.
4. It is submitted that “Sri Athi Varadhar Vaibhavam” happens once in 40 years. “Sri Athi Varadhar” is supposed to be a replica of the present Moolavar Deity and is housed inside a safe chamber in Ananthasaras Pushkarani. In Ananthasaras Pushkarani there is a central Mandapam (Neerazhi Mandapam) and to the south of the central Mandapam there is a small mandapam known as Athi Varadhar Mandapam inside which the celestial body of “Sri Athi Varadhar” is housed.
5. It is submitted that the temple administration of the Arulmigu Devaraja Swamy Temple is the authority to decide the extension of time for worship of holy deity “Sri Athi Varadhar” as per the customs and usage of practice being followed in the temple for several years. The temple authorities are competent to make and enforce rules to ensure good order and proper worship. The established custom and usage relating to the rituals in a temple cannot be changed or violated by any external authority.
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6. It is submitted that the temple’s Archagas and Sthanikars vide their letter dated 07.08.2019 have given their opinion that the Idol of “Sri Athi Varadhar” should be immersed as before under the Four Pillared Mandapam inside the Anadha Saras holy tank after performing poojas as per custom and usages and Agama rules on 17.08.2019 night. The 48 days of dharshan of “Sri Athi Vardhar” should not be changed under any circumstances as anything contrary to this would violate the agama rules and established usage. The Archagas and Sthanikars have given their opinion as follows.
“jpUf;nfhapypd; gHf;f tHf;f';fs; kw;Wk; Mfk tpjpg;go mj;jp tujh; jhprd fhyj;ij 48 ehl;fs; epiwtil 17/08/2019 md;Wld; epiwt[ bra;a ntz;Lk;/ ,e;j jhprd ehl;fis vf;fhuzj;ijf; bfhz;Lk; ePl;og;gnjh khWjy; bra;tnjh jpUf;nfhapy; gHf;f tHf;f';fSf;Fk; kw;Wk; Mfk tpjpfF ;
KuzhdJ vd;W bjhptpjJ ; f; bfhs;fpnwhk;/ 17/08/2019 md;W ,unt gHf;f tHf;fk; kw;Wk; Mfk tpjpfspd;go chpa g{i$fis Koj;J. mUs;kpF mj;jp tujh; kPz;Lk; mde;jru!; jpUf;fsj;jpd; ehd;F fhy; kz;lgj;jpd; moapy; Vw;fdnt ,Ue;jJ nghynt kPz;Lk; vGe;jUsr; bra;antz;Lk;/ ,e;j rk;gujhaj;ij vf;fhuzj;jpw;F bfhz;Lk; khw;wk; bra;ayhfhJ/”.
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7. It is further submitted that the Thennachariya Dharishana Sabha has also given their opinion vide their letter dated 31.07.2019, that the Idol of “Sri Athi Varadhar” should be immersed after the completion of 48 days as on 17.08.2019 as per custom and usages which are prevalent from time immemorial. The Thennachariya Dharishana Sabha has also given their opinion as follows:
“48 ehl;fs; Koe;J Vw;fdnt jpl;lkpl;l go kPz;Lk; mj;jp tujiu mtUf;fhd kz;lgj;jpy; vGe;jUsbra;J ePz;l fhykhf gpd;gw;wp tUk; gHf;f tHf;f';fis filgpoj;J brayhw;WtJ ,Jjhd; ehl;Lf;Fk;. fh";rpg[uj;jpw;Fk;. ,j;jpUf;nfhapypw;Fk;. gf;jh;fSf;Fk; ed;ik gaf;Fk; vd;W Twp v';fSila ntz;Lnfhis epiwntw;WkhW gzpt[ld; nfl;Lf; bfhs;fpnwhk;/”.
8 . It is submitted that based on the reports of the temple Archagas and Sthanikars and the Thennachariya Dharishana Sabha, the temple Assistant Commissioner/Executive Trustee has also stated in his letter dated 09.08.2019 “that the Idol of “Sri Athi Varadhar” should be immersed after the completion of 48 days as on 17.08.2019 as per custom and usages”.
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9. It is submitted that in the year 1937, the deity of “Sri Athi Varadhar” was taken out from the holy tank and kept in Vasantha Mandapam for poojas. The deity was again taken out in the year 1979 after 42 years instead of 40 years, due to the ongoing balalayam and the thiruppani work of the Rajagopuram.
10. It is submitted that in the year 1979, the period of 40 days of poojas of “Sri Athi Varadhar” deity has been extended to 48 days because one mandalam is 48 days.
11. It is also submitted that huge man power is being diverted by various Government Departments from other Districts of Tamil Nadu which has resulted in stagnation of day-to-day affairs of the administration of not only Kanchipuram but other Districts as well. Also the residents of Kanchipuram town are facing many hurdles and inconvenience, due to the flood of devotees coming from various places of Tamilnadu, other States and from other Countries. Particularly the people living in the Sannadhi street and Mada street are facing enormous hardships.
http://www.judis.nic.in 18/42 W.P.No.24028 & 24053 of 2019 Therefore for the foregoing reasons stated supra, it is, humbly prayed that this Hon’ble Court may be pleased to dismiss the above Writ Petition and thus render justice."
19. Learned counsel for the petitioners submitted that from time immemorial, the time limit has been extended considering the religious sentiments and interests of the devotees. They further claimed that there had been precedents of changes made to the customs followed by the temple. Though the idol was supposed to be taken out of the tank once in 40 years, the management gave a gap of 42 years between 1937 and 1979.
20. Learned counsel for the petitioners further submitted that there are crores of people in the State, neighbouring states, other parts of the country and abroad yearning to have darshan of Lord Athi Varadhar and now it is impossible for all of them to see within the time frame that has been determined i.e. only 48 days.
21. Learned counsel for the petitioners further submitted that there is no prohibition under any sastras or agamas with regard to http://www.judis.nic.in 19/42 W.P.No.24028 & 24053 of 2019 extension of the festival and therefore sought extension of time limit beyond 48 days for worshiping the deity.
22. Per contra, Mr.Vijay Narayan, learned Advocate General appearing for the respondents contended that Courts should not interfere in matters of faith and religious customs, and on the said aspect relied on a decision of the Hon'ble Supreme Court in Commissioner of Police and Others Vs. Acharya Jagadishwarananda Avadhuta and Another reported in (2004) 12 SCC 770. He further submitted that the petitioners cannot seek for extension of darshan period, as a matter of right.
23. Learned Advocate General further submitted that the temple administration alone could decide the duration of the darshan of the idol taken out of an underwater chamber inside Anantasaras once in 40 years. The said decision was taken on the basis of customs and even the government cannot interfere in it. The period of 48 days constitutes one mandalam. The archakas as well as sthanikars of the temple vide their letter dated 07.08.2019 have made it clear that extending the darshan period beyond this would amount to violating the Agama Sastras and http://www.judis.nic.in 20/42 W.P.No.24028 & 24053 of 2019 established custom. He further submitted that vide their letter dated 31.07.2019 a similar stand had been taken by the Thennachariya Dharishana Sabha too. During the course of hearing, he also submitted a photograph of an old plaque to prove that the idol, weighing more than 600 kg, was taken out of the temple tank last on July 2, 1979, and immersed back on August 18, 1979 after a 48-day darshan.
24. Learned Advocate General further submitted that based on the reports of the temple Archagas and Sthanikars and the Thennachariya Dharishana Sabha, the temple Assistant Commissioner/Executive Trustee vide his letter dated 09.08.2019, has stated that “the Idol of “Sri Athi Varadhar” should be immersed after the completion of 48 days as on 17.08.2019, as per custom and usages”.
25. Learned Advocate General also explained the reason for the delay in taking out the idol exactly after 40 years and the time extension of 40 days to 48 days. He submitted that the idol could not be taken out in 1977 due to the renovation of temple and its rajagopuram (main tower) at that time. He further submitted that the darshan period was http://www.judis.nic.in 21/42 W.P.No.24028 & 24053 of 2019 extended from 40 to 48 days in 1979 because 48 days constituted one Mandalam.
26. Learned Advocate General also highlighted the inconvenience faced by the local residents and submitted that nearly one crore devotees have visited the temple in the last 48 days and the deployment of huge posse of police personnel, apart from revenue and Hindu Religious and Charitable Endowments Department officials and on that basis also, opposed any extension of time beyond 48 days for darshan.
27. We have heard Mr.Vijay Narayan, learned Advocate General appearing for the respondents and the learned counsel for the petitioners and also perused the materials on record.
28. Petitioner in W.P.No.24028 of 2019 himself has admitted that in 1979 the number of visiting days has been increased from 40 days to 48 days, but the reason according to him is due to heavy rush. He has further stated that after a period of 42 years, the deity was taken out from the pool. It is also his further contention that there are no strict Agama rules http://www.judis.nic.in 22/42 W.P.No.24028 & 24053 of 2019 to show that the deity would be available for dharshan only for 48 days. No universal rule that the deity would be taken out once in 40 years only, because, it was taken out after 42 years in 1979. Taking into consideration the huge crowd and for the benefit of the devotees, he has prayed for extension of time.
29. Petitioner in W.P.No.24053 of 2019 has contended that the festival was celebrated in 1892, 1937 and 1979 respectively, and thus not once in 40 years. According to him, there is nothing in the Puranas and Agamas about the festival and it is a recent custom. According to him, the District Collector, Kancheepuram District has no authority to take a decision to declare the last day of the festival and it is only the Executive Officer, in the rank of Assistant Commissioner to decide. Petitioner has further contended that right to worship, a fundamental right, has been infringed.
30. Whereas, the respondents have contended that Arulmighu Devarajaswamy Thirukkovil, Kanchipuram is a Temple listed under Section 46(iii) of the Tamil Nadu Hindu Religious & Charitable Endowment Act, http://www.judis.nic.in 23/42 W.P.No.24028 & 24053 of 2019 1959 (hereinafter referred to as the Act) and is administered by the Assistant Commissioner/Executive Trustee. Temple administration of the Arulmigu Devaraja Swamy Temple is the authority to decide the extension of time for worship of holy deity “Sri Athi Varadhar” as per the customs and usage of practice being followed in the temple for several years. The temple authorities are competent to make and enforce rules to ensure good order and proper worship. The established custom and usage relating to the rituals in a temple cannot be changed or violated by any external authority. Temple’s Archagas and Sthanikars vide their letter dated 07.08.2019 have given their opinion that the Idol of “Sri Athi Varadhar” should be immersed as before under the Four Pillared Mandapam inside the Anadha Saras holy tank after performing poojas as per the custom and usages and Agama rules on 17.08.2019 night. The 48 days of dharshan of “Sri Athi Vardhar” should not be changed under any circumstances as anything contrary to this would violate the agama rules and established usage. The Archagas and Sthanikars have given their opinion, which is extracted above. Thennachariya Dharishana Sabha has also given their opinion vide their letter dated 31.07.2019, that the Idol of “Sri Athi Varadhar” should be immersed after the completion of 48 http://www.judis.nic.in 24/42 W.P.No.24028 & 24053 of 2019 days as on 17.08.2019 as per the custom and usages which are prevalent from time immemorial. The Thennachariya Dharishana Sabha has also given their opinion stated supra.
31. Based on the reports of the temple Archagas and Sthanikars and the Thennachariya Dharishana Sabha, the temple Assistant Commissioner/Executive Trustee in his letter dated 09.08.2019 has also stated that “the Idol of “Sri Athi Varadhar” should be immersed after the completion of 48 days as on 17.08.2019 as per custom and usages”. In the year 1937, the deity of “Sri Athi Varadhar” was taken out from the holy tank and kept in Vasantha Mandapam for poojas. The deity was again taken out in the year 1979 after 42 years, instead of 40 years, due to the ongoing balalayam and the thiruppani work of the Rajagopuram. In the year 1979, the period of 40 days of poojas of “Sri Athi Varadhar” deity has been extended to 48 days because one mandalam is 48 days. Inconvenience in administration is also stated.
32. On the aspect as to whether there are no Agama rules that the deity should be taken out only once in 40 years, it is the contention of the http://www.judis.nic.in 25/42 W.P.No.24028 & 24053 of 2019 respondents that the festival, Athivaradhar vaibham happens once in 40 years. Further on the contention that, after 1937, it was taken out after 42 years, instead of 40 years, respondents have contended that due to the ongoing balalayam and thiruppani work of Rajagopuram, deity was taken out after 42 years. As regards the period of 48 days, respondents have contended that 48 days represent one mandalam. At this juncture, it is relevant to extract the inscription:
“_njtuh$!;thkp njt!;jhdk;. fh";rpg[uk;?3. rhypthcwd rfhg;jk; 1902 (gryp 1389) rpj;jhu;jj; p Mdp kP 18 e; njjp jp';fl;fpHik (2?7?1979) _ Mjp mj;jpfpup tujiu btspapy; vGe;jUsg;gz;zp 48 ehl;fs; t!e;njhj;!t kz;lgj;jpy; Muhjpff; g;gl;L Mtzp kP 2 Mk; njjp rdpf;fpHikad;W (18?8?1979) kWgoa[k; ,e;j elthgpapy; vGe;jUsg;gz;zg;gl;lhu;/ Muh;/jhj; njrpf jhjhrhupahu;. mtjhk; y/_dpth!uhft jhjhrhupahu;. bfsut ju;kfuj;jhf;fs;/ nf/Rg;gpukzpad;.
epu;thf ju;kfu;jj; h. cjtp Mizau;/
33. Though the petitioners have contended that there are no Agama rules that the darshan can be only for 48 days, it is seen from the inscription the period has been specified which represents one mandalam and as per the letter dated 07.08.2019 of the temple Archagas and http://www.judis.nic.in 26/42 W.P.No.24028 & 24053 of 2019 Sthanikars, extracted supra, as per the agama rules, darshan should be only for 48 days, i.e. one mandalam and there should not be any change.
If there is a change, it would be against the agama rules. Immersion should be done after 48 days of darshan. Thennachariya Dharishana Sabha has also given their opinion vide their letter dated 31.07.2019, that the Idol of “Sri Athi Varadhar” should be immersed after the completion of 48 days as on 17.08.2019 as per the custom and usages which are prevalent from time immemorial. Thus, the respondents have contended that darshan of Sri Athi Varadhar is for only 48 days and immersion is as per custom and usages. Contention of the petitioner that there is no agama rule as regards period of darshan is disputed.
34. It is trite law that disputed questions of fact cannot be adjudged in writ proceedings. Reference can be made to few decisions,
(a) In (1976) 1 SCC 292 (Arya Vyasa Sabha and Ors. v. The Commissioner of Hindu Charitable and Religious Institutions & Endowments, Hyderabad and Ors.) the view taken by the High Court that disputed questions of fact are to be left open to be decided before the Civil Court was upheld by the Hon'ble Supreme Court. http://www.judis.nic.in 27/42 W.P.No.24028 & 24053 of 2019
(b) In the decision reported in (2003) 4 SCC 317 (Rourkela Shramik Sangh v. Steel Authority of India Ltd. and Anr.) it is held that the disputed questions of fact could not be entertained in the writ proceedings. In paragraph 22, the Hon'ble Supreme Court held as follows:
"22. ...a disputed question of fact normally would not be entertained in a writ proceeding. This aspect of the matter has also been considered by a Constitution Bench of this Court in Steel Authority of India Ltd. v. National Union Waterfront Workers (2001) 7 SCC 1...."
(c) In Dharam Dutt v. Union of India reported in 2003(10) SCALE 141, the Hon'ble Supreme Court held that such highly disputed questions of fact which cannot be determined except on evidence are not fit to be taken up for adjudication in the exercise of writ jurisdiction.
(d) In (2006) 9 SCC 256 (Himmat Singh v. State of Haryana and Ors.), the Honourable Supreme Court held that, 'the statement of the appellant or the 5th respondent was correct or not could not ordinarily be tested in writ proceedings and it is well known that in writ petition ordinarily such a disputed question of fact could not be entertained'. http://www.judis.nic.in 28/42 W.P.No.24028 & 24053 of 2019
(e) In yet another decision reported in (2007) 7 MLJ 687 (Food Corporation of India v. Harmesh Chand), the Supreme Court held as follows:
"Since the facts were seriously disputed by the appellant and no factual finding could be recorded without consideration of evidence adduced by the parties, it was not an appropriate case in which the High Court ought to have exercised its writ jurisdiction. The parties could have approached a civil court of competent jurisdiction to adjudicate the matter."
(f) In Gujarat Maritime Board v. Larsen & Toubro Infrastructure Development Projects Ltd., reported in (2016) 10 SCC 46, the Hon'ble Supreme Court, held that it is not for the High Court in a proceeding under Article 226 of the Constitution of India to go into that question since several disputed questions of fact are involved. At Paragraph 10, the Hon'ble Supreme Court has taken note of the decision of the Hon'ble Supreme Court in Joshi Technologies International Inc. v. Union of India [Joshi Technologies International Inc. v. Union of India, (2015) 7 SCC 728], which is worth reproduction:
"10. Recently, this Court in Joshi Technologies International Inc. v. Union of India [Joshi Technologies International Inc. v. Union of India, (2015) 7 SCC 728] , http://www.judis.nic.in 29/42 W.P.No.24028 & 24053 of 2019 where one of us (R.F. Nariman, J.) was a member, has surveyed the entire legal position on exercise of writ jurisdiction in contractual matters. The paragraphs which deal with the situation relevant to the case under appeal, read as follows: (SCC pp. 765-67, paras 68-70) “68. The Court thereafter summarised the legal position in the following manner: (ABL International Ltd. case [ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., (2004) 3 SCC 553] , SCC p. 572, paras 27-28) ‘27. From the above discussion of ours, following legal principles emerge as to the maintainability of a writ petition:
(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.
(b) Merely because some disputed questions of facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.
(c) A writ petition involving a consequential relief of monetary claim is also maintainable.
28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article http://www.judis.nic.in 30/42 W.P.No.24028 & 24053 of 2019 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1] .) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction.’
69. The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, “normally”, the Court http://www.judis.nic.in 31/42 W.P.No.24028 & 24053 of 2019 would not exercise such a discretion:
69.1. The Court may not examine the issue unless the action has some public law character attached to it.
69.2. Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration.
69.3. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination.
69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances.
70. Further, the legal position which emerges from various judgments of this Court dealing with different situations/aspects relating to contracts entered into by the State/public authority with private parties, can be summarised as under:
70.1. At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness.
70.2. State in its executive capacity, even in the contractual field, is under obligation to act fairly and http://www.judis.nic.in 32/42 W.P.No.24028 & 24053 of 2019 cannot practise some discriminations.
70.3. Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 of the Constitution could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases the Court can direct the aggrieved party to resort to alternate remedy of civil suit, etc. 70.4. Writ jurisdiction of the High Court under Article 226 of the Constitution was not intended to facilitate avoidance of obligation voluntarily incurred.
70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the licence if he finds it profitable to do so:
and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient http://www.judis.nic.in 33/42 W.P.No.24028 & 24053 of 2019 to conduct his business.
70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.” (emphasis added)
(g) In Sarvepalli Ramaiah (Dead) v. The District Collector, Chittoor District, reported in 2019 (4) SCC 500, the Hon'ble Supreme Court held as follows:
"26. Judicial review under Article 226 is directed, not against the decision, but the decision making process. Of course, a patent illegality and/or error apparent on the face of the decision, which goes to the root of the decision, may vitiate the decision making process. In this case there is no such patent illegality or apparent error. In exercise of power under Article 226, the Court does not sit in 20 appeal over the decision impugned, nor does it adjudicate hotly disputed questions of fact."
35. In the light of the above discussion and decisions, we are of the view that the aspects as to whether there are agama, rules or note as to when the deity should be taken out from the pool and how many days it should be kept for dharshan can be adjudicated only before a Competent Civil Court, and not in this writ petition.
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36. Petitioner in W.P.No.24053 of 2019 has contended that Executive Officer in the rank of Assistant Commissioner of Hindu Religious and Charitable Endowments Department, is the Competent Authority to decide as to when the idol should be immersed. Answer to the same is explicit in the counter affidavit that based on custom and usages, temple authorities have given letters, contents of which are extracted. Thus the District Administration has acted on the temple Archagas and Sthanikars, and the letter dated 09.08.2019 of the Assistant Commissioner, Hindu Religious and Charitable Endowments Department.
37. Petitioner in W.P.No.24028 of 2019 has contended that there is a violation of Article 25 of the Constitution of India. Deity has been taken out from the pool, for dharshan only for 48 days. Merely because there is a huge crowd and the petitioner could not have dharshan on a day, when he visited, he has contended that Article 25 of the Constitution of India, has been violated, such contention cannot be accepted. As per the version of the respondents about a crore devotees had dharshan. http://www.judis.nic.in 35/42 W.P.No.24028 & 24053 of 2019
38. In Commissioner of Police and Others Vs. Acharya Jagadishwarananda Avadhuta and Another reported in (2004) 12 SCC 770, relied on by the learned Advocate General, at paragraph Nos.9 & 11 held as follows:-
“9. ...........Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts which are protected by the Constitution. Nobody http://www.judis.nic.in 36/42 W.P.No.24028 & 24053 of 2019 can say that an essential part or practice of one's religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the “core” of religion whereupon the belief is based and religion is founded upon.
They could only be treated as mere
embellishments to the essential part or
practices.
*****
11. ............What constitutes an integral or essential part of a religion has to be determined with reference to the doctrines, practices, tenets, historical background, etc. of the given religion. In a given case it is for the court to decide whether a part or practice is an essential part or practice of a given religion. As a matter of fact if in the earlier litigations the court arrives at a conclusion of fact regarding the essential part or practice of a religion — it will create problematic situations if the religion is allowed to circumvent the decision of the court by making alteration in its doctrine..................No party could ever revisit such a finding of fact. Such an attempt will result in anomalous situations and could only be treated http://www.judis.nic.in 37/42 W.P.No.24028 & 24053 of 2019 as a circuitous way to overcome the finding of a court. If subsequent alterations in doctrine could be allowed to create new essentials, the judicial process will then be reduced to a useless formality and futile exercise. Once there is a finding of fact by the competent court, then all other bodies are estopped from revisiting that conclusion. On this count also the decision of the High Court is liable to be set aside.”
39. Contention of the petitioner in W.P.No.24028 of 2019 that taking out the deity for dharshan, is a recent practice, cannot be accepted, because the petitioner in W.P.No.24053 of 2019 has submitted that festival of "Sri Athi Varadhar" vaibham, was celebrated in 1892, 1937 and 1979 respectively.
40. As rightly contended by the learned Advocate General, petitioners as a matter of right cannot seek for extension of dharshan period and seek for a Mandamus.
41. The word "right, or in its plural form "rights," is a common term, of broad signification. It is a generic, abstract, and comprehensive http://www.judis.nic.in 38/42 W.P.No.24028 & 24053 of 2019 term, having a wide scope of meaning in its various legal applications, and it has no satisfactory definition or explanation, except in connection with some concrete conception of thing out of which it grows. It may mean any legal right as the word is normally used, or it may be limited to some specific one of the large class of recognised "rights." It may be a right to do something, to have something, to be something, or even to let alone; it may refer to a right or privilege to use a highway or other public facility, or to utilise one of the great institutions of nature, or, on the other hand, it may refer to personal liberty, security, health, or property.
42. In Wharton's Law Lexicon, the word 'Right' means; 1) is a legally protected interest 2) is an averment of entitlement arising out of legal rules 3) right is an interest recognised and protected by moral or legal rules 4) right, comprehends every right known to the law.
43. In K.J.Aiyar's Judicial Dictionary, the word 'Right' means; 1) a right is a legally protected interest, 2) a right is an interest which is recognised and protected by law.
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44. In Stroud's Judicial Dictionary, the word 'Right' means, is where one hath a thing that was taken from another wrongfully, as by disseisin, discontinuance, or putting out, or such like, and the challenge or claime that he hath who should have the thing, is called right.
45. A prerogative writ, like, a Mandamus cannot be demanded ex debito justiatiae, but it can be issued by the court in its discretion, for which, it must be shown that, there is a non discretionary legal duty upon the authority against whom, the relief is sought for and that the person approaching the High Court under Article 226 of the Constitution of India, has to prove that he has a legal right to be enforced against the authority, for the failure of performance of a legal or statutory duty, by the authority against whom, the relief is sought for.
46. Earlier when W.P.Nos.21824, 21980, 21999, 22001 & 22014 of 2019, were filed, in which, the petitioner therein in W.P.No.21980 of 2019, has sought for a direction to the respondents to permit the petitioner and other devotees to worship the main deities (Mulavar) of Lord Devarajaswamy and Perunthevi Thayar, in Kancheepuram, after http://www.judis.nic.in 40/42 W.P.No.24028 & 24053 of 2019 hearing the learned counsel for the parties, vide order dated 21.07.2019, we dismissed the writ petitions.
47. We are in agreement with the submissions made by the learned Advocate General that Courts should not interfere in matters of faith and religious customs, unless and otherwise the petitioners have established that they could seek extension of the darshan period as a matter of right. Further, we are informed that over one crore devotees have already made darshan of the idol so far. In the light of the above, we are of the view that there is no violation of Articles 25 and 14 of the Constitution of India. We do not find any merit in the instant writ petitions and the same are liable to be dismissed.
48. In the result, both the writ petitions are dismissed. No costs.
[S.M.K., J.] [S.P., J.]
16.08.2019
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Internet : Yes
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S.MANIKUMAR, J.
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SUBRAMONIUM PRASAD, J.
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