S. Nagalingam vs The State and Others

S. Manikumar, J.—1. The petitioner in W.P.(MD) No. 2598 of 2016, has sought for a Mandamus directing the respondents 1 to 4 to give necessary protection to Masi Mahasivarathiri festival to be celebrated by him, and his community people, in Arulmighu Kattu Karuppanasamy Kovil, Maravankulam Village, Tirumangalam Taluk, Madurai District from 06.03.2016 to 09.03.2016 and connected festivities.

After going through the materials on record, Writ Court has found that there is a dispute between the members of Washermen Community and Pillaimar Community regarding the conduct of Mahasivarathiri celebrations in Arulmighu Kattu Karuppanasamy Kovil, Maravankulam Village, Tirumangalam Taluk, Madurai District. Writ Court has also noticed that an order in O.A. No. 19 of 2002 dated 15.02.2011 of the Joint Commissioner, HR & CE, Madurai, directing both the community people to worship and participate in Mahasivarathiri festival. Before the Writ Court, the petitioner has also contended that a Peace Committee Meeting was conducted by the Tahsildar, Tirumangalam, in which the members of Pillaimar Community were heard and they were objecting to recognise the rights of Washermen Community.

In the above stated circumstance, the Writ Court, vide order dated 05.02.2016 in W.P.(MD) No. 2598 of 2016, directed the Revenue Divisional Officer, Usilampatti to conduct an enquiry and after hearing both parties, to take appropriate decision. The Writ Court has further directed that the Revenue Divisional Officer should also take note of the law and order situation in the area. Being aggrieved by the same, the present appeal has been filed.

Considering the paucity of time, we directed the learned Special Government Pleader to take notice for the official respondents 1 to 4.

During the course of hearing of the appeal, it was brought to the notice of this Court that the dispute between the two communities continued to exist even after the order in O.A. No. 19 of 2002 dated 15.02.2011 was passed by the Joint Commissioner, HR & CE, Madurai, and that an FIR was registered in Crime No. 56 of 2011 under Section 107 of Cr.PC on the file of the City Police Station, Tirumangalam. The Revenue Divisional Officer, Usilampatti, has issued notice to both the parties calling upon them to execute bonds for keeping peace, as contemplated under Section 107 of Cr.PC. Added further, learned counsel for the appellant / writ petitioner, further submitted that the members belonging to Washermen Community were not permitted to celebrate Mahasivarathiri festival in the temple, by the rival group, viz. members belonging to Pillaimar Community.

During the hearing of the writ appeal, attention was also drawn to the earlier order of this Court in Crl.OP(MD) No. 1207 of 2008 dated 05.03.2008, wherein, after considering a similar issue where there was an apprehension of unrest, leading to law and order problem, this Court exercised the powers under Section 482 of Cr.PC and granted police protection.

During the hearing of the writ appeal, it was also submitted by the learned counsel for the appellant / writ petitioner, that the members of Washermen Community would not in any manner, disturb the members of Pillaimar Community to attend the festivities of the temple, and in fact, would undertake to maintain harmony.

After taking note of the earlier orders passed by the Joint Commissioner, HR & CE Court, dated 15.02.2011, proceedings initiated in Crime No. 56 of 2011 under Section 107 of Cr.PC., and the further action of the Revenue Divisional Officer, Usilampatti by issuing notices to both the parties calling upon them to execute bonds for keeping peace, as contemplated under Section 107 of Cr.PC., as well as the order of this Court in Crl.OP(MD) No. 1207 of 2008 dated 05.03.2008, in W.A.(MD) No. 305 of 2016, dated 16.02.2016, we passed the following order:

"12. Considering the facts and circumstances of the case, this Court is of the view that interests of justice would be met by passing the following order:-

(i) The first respondent is directed to provide adequate and effective police protection towards enabling the petitioner as all other villagers, including the 5th respondent and persons belonging to his community, observing the conduct of Masi Maha Sivarathiri festival at Arulmighu Katty Karuppanasamy Kovil, Maravankulam Village, Tirumangalam Taluk, Madurai District as also connected festivities between 06.03.2016 and 09.03.2016 (both days inclusive).

(ii) The second respondent Superintendent of Police, Madurai District (Rural), Madurai shall supervise the police protection arrangements made by the first respondent.

(iii) This order is not to be read as determinant of rights of parties.

(iv) The above order is subject to the appellant swearing to a notarized affidavit, undertaking that members of the appellant community would conduct themselves in a peaceful and law abiding manner and would in no manner hinder or obstruct the participation of the members of the rival community."

Contending inter alia that the above said order has been passed without providing an opportunity to put forth the facts, and alleging that the appellant / writ petitioner has obtained orders behind the back of the review petitioner, the present review application has been filed.

Assailing the correctness of the order made in the writ appeal, Mr.G.Thalaimutharasu, learned counsel appearing on behalf of the review petitioner / respondent No. 5 in the writ appeal, submitted that forefathers the Review petitioner has established the temple and it is under the management of Pillaimar Community of Maravankulam Village, for nearly 150 years. According to him, except members of Pillaimar Community, no other community people have any right, in the administration of Arulmighu Sri Aadhi Sivalingam Swamy and Sri Kattu Karuppanna Swamy temple. Members belonging to Pillaimar Community alone have been celebrating Mahasivarathiri temple festival.

Learned counsel for the review petitioner further submitted that in the order made in O.A. No. 19 of 2002 dated 15.02.2011, the Joint Commissioner of HR & CE, has granted permission to Mr.S.Balakrishnan and three others, members of Washermen Community, only to jointly worship during Mahasivarathiri Festival. They do not have any right to perform poojas. According to him, the temple was established by the members of the Pillaimar Community, to which the Review Petitioner belong, and poojas are to be performed only by the members of that community, and the said right has not been taken away by the Joint Commissioner of HR & CE, in his order dated 15.02.2011.

Inviting the attention of this Court to the invitations enclosed in the typed set of papers, filed by the review petitioner, it is also the contention of the learned counsel for the review petitioner that performance of poojas, for three days, during Mahasivarathiri Festival was agreed to be performed only by the members of Pillaimar Community, during the Peace Committee Meeting held on 20.02.2012, and the said practice had been followed from 2010 to 2015. He further submitted that as per the decision in the Peace Committee Meeting, members of Pillaimar Community alone are entitled to perform poojas through the Archakas nominated by them. He also submitted that the members of Washermen Community performed poojas and celebrations few days before the Mahasivarathiri days and after the completion of Mahasivarathiri festival. According to him, members of Washermen Community had never performed poojas or celebrations during Mahasivarathiri Festival. According to him, all the above have been conveniently suppressed by the appellant / writ petitioner and therefore, they are not entitled to remedy under Article 226 of the Constitution of India.

Per contra, Mr.N.Dilipkumar, learned counsel for the fifth respondent / writ appellant, submitted that though the Joint Commissioner, HR & CE, permitted the members of Washermen Community to worship along with the members of Pillaimar Community, in the Peace Committee Meeting, the latter declined to follow the order and in the result, members of Washermen Community were restrained to perform poojas and celebrations, after Mahasivarathiri Festival. According to him, the decision of members of the Washermen Community was taken in the year 2012, and the course adopted at that point of time, would not erase the order passed by the Joint Commissioner.

Learned counsel for the writ appellant / writ petitioner, submitted that he has no objection for any independent Archagar to perform the poojas during Mahasivarathiri Festival and all that he prays is that the members of the Washermen Community should be allowed to participate in Mahasivarathiri Festival.

Mr.N.Manohar, Special Government Pleader, submitted that taking note of the dispute between the two groups, in 2009 and 2010 respectively, Archakas nominated by the HR & CE Department performed the poojas and after 2010, HR & CE Department was not approached for appointment of Archakas by either side and therefore, there was no occasion for the Hindu Religious and Charitable Endowments Department to intervene in the matter of performance of poojas.

After making elaborate arguments, learned counsel for the revision petitioner posed a question as to who would be the Archaka to perform the pooja, rites and ceremonies during the Mahasivarathiri Festival.

Heard the parties and perused the materials available on record.

Preamble of our Constitution of India, to be reminded to all of us, at all times, reads as follows:-

"WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and opportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION."

Article 14 of the Constitution of India states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. A reading of the above though may indicate that it is only the State which should not deny equality before law, but in reality, all should adhere to the constitutional objectives.

In the case on hand, it is the contention of the members of Pillaimar Community that they have established Arulmighu Sri Aadhi Sivalingam Swamy and Sri Kattu Karuppanna Swamy temple, and are performing the poojas and festivities, for several years. Members of Washermen Community have contended that they were also performing poojas and celebrations in the same temple. Thus, both parties, unmindful of the constitutional roles to achieve social justice, equality of status, at least before God, are fighting between themselves, to establish rights as to who should perform poojas and rituals, rites and ceremonies. Reading of the order made in O.A. No. 19 of 2002, shows that the following prayer has been sought:

After considering the oral and documentary evidence produced by both the parties, vide order dated 15.02.2011 in O.A. No. 19 of 2002, the Joint Commissioner, HR & CE, has ordered as hereunder:

The Joint Commissioner, HR & CE has made it clear that members of Washermen Community have a right to perform poojas and other ceremonies, along with the members of Pillaimar Community. When the Joint Commissioner has categorically declared the rights of the parties therein, objections seemed to have been made before the Tahsildar, which resulted in a Peace Committee Meeting on 20.02.2012.

A reading of the preamble to the decision taken on 20.02.2012 in the Peace Committee Meeting shows that objections of the members of Pillaimar Community was that without permission, members of Washermen Community attempted to worship the deity Karuppanaswamy. Decision of Peace Committee Meeting shows that Pandi and three others, have represented the members of Pillaimar Community and Balakrishnan and others, have represented the members of Washermen Community. Deliberations of Peace Committee Meeting disclose objections as to the worship in Karuppanaswamy temple. It was also contended in the Peace Committee Meeting that during worship, members pertaining to Pillaimar Community alone would be archakas. After deliberations, the following decision has been taken:

A perusal of the Peace Committee Meeting decision recorded by the Tahsildar shows that members of the Pillaimar Community have consented that they would not make any objections to the members of Washermen Community to worship. However, none of the members pertaining to Pillaimar Community have signed the Peace Committee Meeting decision dated 20.02.2012.

Contention of the learned Special Government Pleader that in 2008 and 2009, members belonging to both the parties worshipped even during Mahasivarathiri Festival together and that an Archaka was nominated by the Department of HR & CE, has not been disputed by the petitioner.

Though Mr.G.Thalaimutharasu, learned counsel for the revision petitioner submitted that the temple is a private temple in which members of Washermen Community have no right, the fact remains that the Joint Commissioner of HR & CE, had already passed an order in O.A. No. 19 of 2002 dated 15.02.2011, thereby exercising the department''s control over the temple.

Though the learned counsel for the revision petitioner submitted that correct facts have not been placed before this Court, at the time of passing order in the writ appeal, and thus there is suppression, this Court is not inclined to interfere with the same, for the reason that the facts now placed before this Court are not so material to arrive at the conclusion that there is a material suppression, which would have tilted the decision of this Court.

While taking note of the orders passed in Crl.OP(MD) No. 1207 of 2008, considering the sensitivity which the people attach to their caste, performance of poojas and the question as to whether who would perform the poojas and rites during the Mahasivarathiri Festival days, learned counsel for the appellant / writ petitioner, has no objection for anybody to be appointed. According to him, members of Washermen Community should be permitted to take part in the Mahasivarathiri Festival.

Contention of both parties is that Mahasivarathiri Festival is conducted to attain salvation, which the parties believed. Taking note of the desire of both parties, we are of the view that the order made in the writ appeal does not require any interference, except to the extent of appointment of Archaka, to be made independently by the HR & CE Department, as done in the past during 2008-2009, for the performance of Poojas.

In the result, order of the writ appeal No. 305 of 2016 dated 16.02.2016, is modified only to the appointment of an Archaka by the Hindu Religious and Charitable Endowments Department. The review application is allowed only to the extent as indicated. No costs. Consequently, the connected miscellaneous petition is closed.

Having regard to the reasoning and observation of this Court, we only hope that instead of concentrating more on the rights as to who should perform poojas, we only wish that parties spend few minutes on the constitutional objectives. Department of HR & CE has to appoint an independent Archaka.

Superintendent of Police, Madurai District (Rural), Madurai, is directed to issue appropriate orders and to take preventive action, for the smooth conduct of Mahasivarathiri Festival without giving any room for unrest. Learned Special Government Pleader, is directed to communicate the orders of this Court to the Superintendent of Police, Madurai District (Rural), Madurai, to act immediately, without waiting for the orders of this Court.