W.P.No.16762 of 2009
1.The District Collector, Villupuram District.
2.The Superintendent of Police, Villupuram District.
3.The Revenue Divisional Officer, Kallakurichi Taluk, Villupuram District.
4.The Tahsildar, Sankarapuram Taluk, Villupuram District.
5.The Commissioner, Hindu Religious and Charitable Endowment Board, Kallakurichi, Villupuram District.
6.The Inspector of Police, Sankarapuram Taluk Police station, Villupuram District. ... Respondents in W.P.No.17411 of 2009 Prayer in W.P.No.16762 of 2009 Petitions under
Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, calling for the records relating to the order of the 1st respondent herein in Na.Ka.No.A3/4549/2009 dt.27.7.09 and quash the same and forbear the 1st respondent herein from in any manner interfering with the Religious Rites and custom of the petitioner in performing the Temple Car Festival of The Arulmighu Poottai Mariamman Temple, Poottai Village, Sankarapuram Taluk, Villupuram District during the last Friday of Tamil month Aadi as per the Hindu Custom and Usage as had been done from time immemorial.
Prayer in W.P.No.17111 of 2009 Petitions under
Article 226 of the Constitution of India praying for a Writ of mandamus, directing the respondents particularly the 3rd respondent herein to implement the order passed by him on 27.7.2009 in Na.Ka.No.A3/4549/2009 based on the decision taken in peace committee on 26.7.2007 and allow the petitioners to take the chariot procession (Sakadai) through their colony during the Mariamman Kovil Temple Festival in the month of Aadi.
For Petitioners in W.P.No.16762/2009 : Mr.AR.L.Sundaresan,S.C.
2.W.P.No.16762 of 2009 is filed by the Board of Trustees of Arulmighu Poottai Mariamman Temple represented by its President. The relief sought for in the writ petition is to set aside the order of the first respondent (The Revenue Divisional Officer-cum-Executive Magistrate, Kallakurichi) dated 27.07.2009. After setting aside the same to forbear the first respondent RDO from in any manner interfering with the Religious Rites and Customs of the petitioner in performing the Temple Car Festival of the Temple on the last Friday of Tamil month 'Aadi' as per the Hindu Custom and Usage.
3. When the matter came up for admission on 19.08.2009, the respective counsels took notice.
4. Thereafter, ten residents of Poottai Village Colony filed a writ petition being W.P.No.17111 of 2009 seeking for a direction to implement the order passed by the Revenue Divisional Officer dated 27.07.2009 based on the decision of the Peace Committee Meeting dated 26.7.2007 and to permit the petitioners to take the temple car (Sakadai) through their colony during the Mariamman Temple Festival during the month of Aadi.
5. When the matter came up on 24.08.2009, this Court directed the respondents (HR & CE Department) to specify their stand by filing an affidavit relating to the route by which the car can be taken through.
6. A common counter affidavit dated 27.08.2009 was filed by the Joint Commissioner, HR & CE, Villupuram. The Revenue Divisional Officer, Kallakurichi has also filed a counter affidavit dated 24.08.2009.
7. In view of the interconnectivity between the two writ petitions, they were heard together and a common order is passed.
8. In the first writ petition (W.P.No.16762/2009), it was stated that the Arulmighu Poottai Mariamman Temple is an age old temple and was in existence for over a century. Poojas were performed in the said temple as per Agamas. All religious festivals, including the procession of the deity, Car festival were performed strictly as per the custom. One of the main festival of the temple is the annual "Ther Thiruvizha" (car Festival) which is conducted during the Tamil month of Aadi. As per Agama Sastras, various steps are to be taken to perform the Poojas and rituals. On the last Friday of the Tamil month of Aadi, the procession of the Deity will be taken through streets will be preceded by fire works and other religious activities. The deity will be decorated and will be on the Temple Car and taken through the customary route namely, Middle Street West, North Street and the street behind the temple, Mettu Street. It was also taken to Sembarampattu village through north, east, south and west streets. After a night halt at Sembarampattu village, the deity will return to the Poottai village via Mettu Street and will reach the temple. It is claimed that from time immemorial, the deity is taken on procession in the Temple Car only on the chartered route. The said street is also called as the Car Street. The villagers irrespective of caste, creed, community and gender are allowed to offer worship without any discrimination. According to the petitioner- Trustees, certain persons in the Village are obstructing the customary route and are claiming that the deity should also be taken through their streets in the village Colony.
9. The Revenue Divisional Officer (RDO), Kallakurichi called for a Peace Committee in view of the apprehension of breach of law and order. A Peace Committee Meeting was held on 22.07.2009 and 27.07.2009. It was claimed that without appreciating the long tradition and custom, by an order dated 27.07.2009, the RDO prohibited the Car Festival and stated that a Committee comprising of Circle Inspector, Sankarapuram, the Revenue Officials and the HR & CE Officials will be formed and they will take a decision regarding the route in which the deity can be taken in a procession.
10. Aggrieved by the same, the petitioner had contended that the action of the first respondent RDO is violative of
Article 25 of the Constitution of India. In the guise of a Peace Committee, they cannot conduct a 'Katta Panchayat' (Kangaroo court) and no show cause notice was given before altering the custom. It was stated that a worshipper from the petitioner's side had filed a suit in O.S.No.97 of 2009 before the Sub-Court, Kallakurichi. In that suit, it was claimed that there cannot be an alternative route for the procession of the deity. An interim injunction was also granted by the Civil Court.
11. In the second writ petition (W.P.No.17111 of 2009) filed by the Adi Dravidars of the village, it was contended that the petitioner Trustee are caste Hindus of the village and they are unreasonably denying the right of the Adi Dravidars (Dalits) of the colony in participating in the temple Car festival. It was stated that the suit was filed by a person who was not party to the Peace Committee and by suppressing the Peace Committee Meeting, such a suit was filed. It was stated that the Colony people also want to participate in the Mariamman Temple Festival and they wanted the temple Car to pass through the Colony so that the people of the colony can also feel part of the village. There was nothing legally wrong in the solution arrived at by the RDO in the Peace Committee Meeting held on 26.07.2007.
12. In the common counter affidavit filed by the Joint Commissioner, HR & CE, it was stated that the Temple is a public religious institution coming under the jurisdiction of HR & CE Department. The Temple is a listed temple under Section 46(1) of the HR & CE Act. It is administered by non-hereditary trustees who were appointed by the Department by proceeding dated 04.07.2008. The deponent to the affidavit in the first writ petition C.Arumugam and two others were appointed as trustees for a period of one year. They took charge on 16.07.2008 and their term of trusteeship came to an end on 15.07.2009. They are now in the defacto management of the temple until a new Trust Board is constituted. It is submitted that during the month of Aadi, the Car Festival is celebrated by the temple.
13. During the year 2007, the Dalits from the village Colony requested that the Car carrying deity should be taken through their Colony also. There is no such practice adopted in the temple from time immemorial. The request of the Dalits were denied by the caste Hindus and because of the unrest, a Peace Committee was conducted by the RDO. It was agreed that a small car (Sakadai) will be enrouted through the colony as per the meeting held on 26.07.2007. In 2008 also similar issue was raised but no compromise was arrived at between the parties. Once again the same problem cropped up and despite a meeting by the RDO, no consensus was arrived at. It is now stated that temple car festival is conducted in such a way that temple car is taken from Poottai and Semparampattu villages without going through the Colony. The HR & CE Department has no objection for the temple Car taking the route through the colony.
14. In the counter affidavit filed by the RDO, after narrating the rituals performed in the temple, in paragraph 7, it was stated that the Dalits of the village wanted the Car to pass through the village. This led to tension between the two communities which was likely to breach the law and order in the village. So as to instill communal harmony among the villagers, number of peace committee meetings were held previously. The representatives of both part of the village, including the deponent to the first writ petition had attended the meeting. Though peace committees were held on 22.07.2009 and 27.07.2009, no consensus was arrived at between the parties. Therefore, in order to avoid breach of public order, a ban order dated 27.07.2009 was promulgated by him. It was further submitted that no one can be discriminated on grounds of religion and everyone has got a right to have equal participation in various religious activities.
15. Thus the main issue is that both parties wanted to have certain rights. But such rights should be exercised without breach of public order. In the name of religion, if there is law and order problem, it is well open to the Revenue Divisional Officer-cum-Executive Magistrate to take steps to restore law and order. Therefore, the order dated 27.07.2009 in stopping the Car Festival during the month of Aadi in 2009 cannot be found fault with. Infact the RDO in order to bring harmony directed the conduct of daily Poojas and also suggested formation of a committee comprising of Police, Revenue and HR & CE Department officials so that the route of the temple Car by which the deity can be taken can be determined.
16. In the Peace Committee meeting held on 26.07.2007, it was decided that apart from the usual route from Poottai and Sembarampattu, a small car (Sagadai) can be used for taking the deity to the Colony by considering the width of the road leading to the colony. That decision was not adhered to by the caste Hindus of the village. In the festival for the year 2008, the RDO was forced to prohibit the Car procession. Similarly in 2009 despite the Peace Committee meeting, the parties did not agree for any reasonable solution.
17. Mr.AR.L.Sundaresan, learned Senior Counsel appearing for Ms.A.L.Gandhimathi submitted that the authorities in the guise of enforcing law and order cannot create new custom and usage for the temple and the temple car will have to run through the established custom.
18. First of all, the contention that the Mariamman temple was constructed by following the Agama principle itself is a doubtful proposition. The deities like Mariamman are sub-cultural deities which are peculiar to South India. Fortunately, these temples are not trapped by any Agamas. In the present case, such a custom was followed over a century is denied by the HR & CE Department. Such Agamas concept and rituals were sought to be applied due to Sanskritization of these deities.
19.Dr.A.K.Perumal in his article on "Concepts of Folk Gods" says that when certain castes make socio-economic advancement it is natural for them to upgrade the rituals in the worship of village deities. When such temples owned by those castes, were renovated, they introduce orthodox rituals applicable to sanskritized temples. Circumstances have compelled them to change even the form of the gods and godesses. ....Even in respect of temples for folk gods, Kumbabishekam is now performed by orthodox brahmins and Acharyas who propitiate those gods by reciting sanskrit mantras and conduct poojas. It has reached the stage, even in such community temples where they themselves were performing poojas, today these castes are forbidden to enter the 'Karbagrahas' of the deities (P.50). In the Indian society with its caste hierarchy there is a trend by the castes in the lower hierarchy to upwardly move towards the practices of a so called higher caste. Mr.M.N.Srinivas, a Sociologist initially called it as Brahminisation. Subsequently he coined a new phrase "Sanskritization" to describe that trend (P.48). These attempts have made the cultural pluralism into an unitary culture (P.51) (See: "Lands where gods spring up" Dr.A.K.Perumal : Tamizhini Chennai. 1st Edition Dec.2003)
20. The status of a Mariamman temple was considered by this Court in Pinnaiyakkal vs. The District Collector, Madurai and others reported in 2008 (3) TLNJ640 (civil). When once that a position is accepted, the question arises for consideration is whether the custom or usage pleaded has any legal sanction. In the present case, even the long custom claimed was also denied by the HR & CE Department. Then in reality the temple trustees, who are caste Hindus of the village are unreasonably denying the rights of the dalits' participation in the Car festival. When once the petitioner Temple is a listed temple coming under the control of the HR & CE Department, the Trustees or the Villagers cannot claim some exclusive right denying the rights of the Dalits of the village. Such an attempt of the Caste Hindus is nothing but an act of untouchability prohibited by
Article 17 of the Constitution. The petitioner cannot seek for a right which is neither available under any law nor under an order passed by the Department upholding the custom. No such right is protected by
Article 25 of the Constitution.
Article 25 of the Constitution only guarantees a right if it is an essential part of the religion and not all types of practices which are claimed by parties.
21. The issue as to what constitute an essential part of religion came to be considered by a Division Bench vide its decision in V.S.Srikumar v. State of Tamilnadu and others reported in 2008 (3)MLJ 17, wherein in paragraphs 44 and 45 it was held as follows:
44. The Supreme Court, in N. Adithayan v. Travancore Devaswom Board and others [2002 (8) SCC 106], while considering the scope of Travancore Cochin Hindu Religious Institutions Act, 1950 as well as Agamas in relation to appointment of temple poojaris selected from communities other than Malayala Brahmin, held that 'there was no right based upon a custom which existed before the Constitution and which involves omission of non-Brahmins from performing poojas in the temple if they are otherwise trained and qualified for doing the same'. In this context, it is relevant to refer to the following passage found in paragraph 10 and quoted in approval of the earlier order of the Supreme Court in Bhuri Nath v. State of J&K [1997 (2) SCC 745]. The following passage found in paragraph 13 may also be quoted:
Para 10: "It has also been held that compilation of treatises on construction of temples, installation of idols therein, rituals to be performed and conduct of worship therein, known as Agamas came to be made with the establishment of temples and the institution of Archakas, noticing at the same time the further fact that the authority of such Agamas came to be judicially recognized. It has been highlighted that: (SCC p. 9, para 11) Where the temple was constructed as per directions of the Agamas the idol had to be consecrated in accordance with an elaborate and complicated ritual accompanied by chanting of mantras and devotional songs appropriate to the deity. Thereafter for continuing the divine spirit, which is considered to have descended into the idol on consecration, daily and periodical worship has to be made with twofold object to attract the lay worshippers and also to preserve the image from pollution, defilement or desecration, which is believed to take place in ever so many ways. Delving further into the importance of rituals and Agamas it has been observed as follows: (SCC pp. 19-21, paras 11-12) Worshippers lay great store by the rituals and whatever other people, not of the faith, may think about these rituals and ceremonies, they are a part of the Hindu religious faith and cannot be dismissed as either irrational or superstitious. An illustration of the importance attached to minor details of rituals is found in the case of His Holiness Peria Kovil Kelvi Appan Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu v. Prathivathi Bhayankaram Venkatacharlu which went up to the Privy Council. The contest was between two denominations of Vaishnava worshippers of South India, the Vadagalais and Tengalais. The temple was a Vaishnava temple and the controversy between them involved the question as to how the invocation was to begin at the time of worship and which should be the concluding benedictory verses. This gives the measure of the importance attached by the worshippers to certain modes of worship. The idea most prominent in the mind of the worshipper is that a departure from the traditional rules would result in the pollution or defilement of the image which must be avoided at all costs. That is also the rationale for preserving the sanctity of the Garbhagriha or the sanctum sanctorum...."
Para 13: "In Bhuri Nath v. State of J&K this Court while dealing with the validity of the J&K Shri Mata Vaishno Devi Shrine Act, 1988, and the abolition of the right of Baridars to receive share in the offerings made by pilgrims to Shri Mata Vaishno Devi, observed their right to perform pooja as only a customary right coming from generations which the State can and has by legislation abolished and that the rights seemed under Articles 25 and 26 are not absolute or unfettered but subject to legislation by the State limiting or regulating any activity, economic, financial, political or secular which are associated with the religious belief, faith, practice or custom and that they are also subject to social reform by suitable legislation. It was also reiterated therein that though religious practices and performances of acts in pursuance of religious beliefs are, as much a part of religion, as further belief in a particular doctrine, that by itself is not conclusive or decisive and as to what are essential parts of religion or belief or matters of religion and religious practice is essentially a question of fact to be considered in the context in which the question arises on the basis of materials factual or legislative or historic if need be giving a go-by to claims based merely on supernaturalism or superstitious beliefs or actions and those which are not really, essentially or integrally matters of religion or religious belief or faith or religious practice."
45. Further, the Court also emphasised in paragraph 16 that what constitutes essential part of religion or religious practice will have to be decided by the Courts only and the following passage found in paragraph 16 may be quoted usefully:
Para 16: "The legal position that the protection under Articles 25 and 26 extends a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion or practices regarded as parts of religion, came to be equally firmly laid down."
22. Therefore, in the absence of any established custom and right, there is no scope for the Trustees to assert a right of taking the temple car through a particular route thereby denying the right of the colony Dalits from worshipping the deity in the colony itself. Infact the only constraint can be the width of the road leading to the colony. In the earlier Peace meeting, the residents of the colony namely, the Dalits have agreed to take the deity in a small car (Sagadai) to the colony and bring it back to the main road so as to complete the route of the procession.
23. A similar controversy came to be considered by a Division Bench of this Court presided by M.Katju,C.J. (as he then was) in Puthiya Tamilagam rep. By its President,Dr.K.Krishnasamy v. State of Tamil Nadu and others reported in 2005-3-L.W. 140. In that case, the Division Bench by referring to the earlier case in G.Krishnan & Others v. Union of India and others held that in the modern age, no one should be insulted, humiliated or looked down upon, as this is the age of equality. Our constitution also envisages equality, which includes special help and care for the weaker and oppressed sections of the society, who have been downtrodden for thousands of years.
24. Thereafter, the Bench observed in paragraph 10, which is as follows:-
"10. ....This Court will no longer tolerate such kinds of treatment of the S.C./S.T. Communities as they also are equal citizens of our country and are hence entitled to a life of dignity in view of
Article 21 of the Constitution of India, as interpreted by the Supreme Court of India. In our opinion, to deny them the right to participate in the pulling of the Temple Car is violation of
Article 21 of the Constitution, apart from being violative of the orders of the Court dated 6.7.1998 and of the Commissioner dated 26.6.1999, and it will simply not be tolerated by this Court."
25. After referring to G.Krishnan's case (Cited supra), the Division bench in paragraphs 13 and 14 held as follows:-
"13. It is alleged that some representatives of the Nattar community claim that there is a custom that members belonging to the Scheduled Caste and Scheduled Tribe Communities have no right to pull the temple car. Although this contention is denied, yet even assuming that there is such a custom, it will be wholly illegal and unconstitutional, as it is against the right to a life of dignity envisaged in
Article 21 of the Constitution. After the promulgation of the Constitution, all customs which are in violation of Articles 14,21 and other constitutional provisions are null and void, and have to be disregarded, since the Constitution is the fundamental law of the land.
14. We, therefore, direct the District Collector cum District Magistrate, Sivaganga District, to ensure strict compliance of the order of this Court dated 6.7.1998 in W.M.P.NO.14132 of 1998 in W.P.No.9235 of 1998 as well as the order of the Commissioner of the H.R. & C.E. Department dated 26.6.1999, both in letter and spirit. We make it clear that the District Collector cum District Magistrate will be personally held responsible if the order we are passing today is not complied with. The District Collector cum District Magistrate must act fairly to all castes and communities and ensure that everyone is given equal respect in this Car Festival and even otherwise. The District Collector cum District Magistrate will submit a report to this Court about the conducting of the Car Festival and as to whether our orders have been complied with in letter and spirit. This Court will continue monitoring the matter even in future."
26. In the light of the above said judgment, the attempt by the Trustees to prevent the Dalits from taking the temple car to the Colony during the Temple Car festival held during the month of Aadi cannot be accepted by this Court. Any such order in their favour will amount to perpetuating untouchability which has been specifically prohibited by
Article 17 of the Constitution of India. The temple Trustees have failed to establish any custom or usage in charting the route for the deity to be taken in the temple Car. For the last three years due to their intransigence and caste supremacy, the festival has been stopped. It is not as if there is no place in the colony by which the deity can reach the dalit, but there is place in the heart of the caste Hindus of the village to accept the dalits as Their brethren so as to have a whole community worship. In such circumstances, the Government cannot be a spectator in denying the rights of the dalits of the colony and the constitutional mandate will have to be enforced through all legal means.
27. Under such circumstances, the direction issued by the first respondent RDO, informing a Committee of Police, Revenue, HR & CE Department officials being constituted to decide the route by which the deity can be taken cannot be found fault with.
28. In the light of the above, W.P.No.16762 of 2009 will stand dismissed. W.P.No.17111 of 2009 will stand allowed to the extent that the Committee suggested by the RDO will meet within four weeks and decide the route by which the temple Car will be taken through including the feasibility of having a small car (Sagadai) by which the deity can be carried through the colony and brought back to the main street. When once such a decision is taken by the Committee, it is open to the authorities (the official respondents) to enforce the said route. No one will be allowed to prevent the route being adhered to in the future car festivals to be conducted in the Poottai Mariamman Temple. The parties are allowed to bear their own costs. Consequently, connected miscellaneous petitions are closed.
18.12.2009 Index : Yes/No Internet:Yes/No svki K.CHANDRU,J.
Svki To
1.The Revenue Divisional Officer-cum-
Executive Magistrate, Kallakurichi, Villupuram District.
2.The Deputy Superintendent of Police, Thirukoilur, Villupuram District.
3.The Inspector of Police, Sankarapuram Police Station, Villupuram District.
4.The Revenue Tahsildar, Sankarapuram Taluk,Villupuram District.
5.The Joint Commissioner, HR & CE Department,Villupuram District.
6.The Inspector of HR & CE Department, Kallakurichi,Villupuram District.
7.The District Collector, Villupuram District.
8.The Superintendent of Police, Villupuram District.
9.The Tahsildar, Sankarapuram Taluk, Villupuram District.
9.The Commissioner, Hindu Religious and Charitable Endowment Board, Kallakurichi, Villupuram District.
Pre-Delivery Order in W.P.Nos.16762 & 17111/2009 18.12.2009