'Deepathoon' Is Figment Of Judge's Imagination: Madurai Authorities Tell Madras High Court Over Thiruparankundram Deepam Row

Opposing the single judge's order directing the lighting of a lamp at the stone pillar in Thiruparakundram Hills, Madurai district, and police authorities told the Madras High Court (Madurai bench) on Tuesday (December 16) that the deepathoon (stone pillar) is a figment of the judge's imagination or devotees' imagination, which the judge had latched on to.

In doing so, the authorities told the court that even if there was deepathoon, the single judge could not have direct lighting of lamp there and at best could have asked the authorities to explore possibilities; however, instead the single judge had gone beyond which he could not have done. 

A division bench of Justice G Jayachandran and Justice KK Ramakrishnan was hearing a batch of pleas, including those filed by the Dargah management, challenging a single judge's order directing the temple authorities to light the lamp at the stone pillar. For context, the single judge had said that the deepathoon(stone pillar) was not located in the area that belonged to the Muslims, and thus lighting the lamp would not affect the rights of the community.

The State authorities also filed an appeal challenging the single judge's order in a contempt plea on December 4th, wherein the judge quashed the prohibitory order under Section 144 CrPC. Another set of Appeals also came up before the court challenging the single judge's order of December 9 in the contempt plea, directing the appearance of the Chief Secretary, ADGP, DCP and impleading the Union Home Secretary.

Deepathoon a figment of judge's imagination, State has to consider public order: Madurai authorities

Senior advocate Vikas Singh appearing for Madurai's Collector KJ Praveenkumar and Police Commissioner J Loganathan referred to the 1920 order and said that Nellithope, flight of stairs and entire top of the hill were given to Mohammedans. He said that the decree stated that the Hindus don't have a right to light lamp at the hilltop.

Referring to the 1996 court order, which said temple that authorities could only consider lighting lamp anywhere else, Singh said, "The management never felt it necessary to light the lamp anywhere else because they felt there was no need".

He argued that the petitioners do not have any fundamental or legal right to ask for lighting of the lamp at hilltop. Singh referred to the single judge's order where the judge had noted that purpose of a deepathoon is to lamp light. He said that the word deepathoon was not mentioned in the representation (by writ petitioners before single judge) or earlier litigations and was bought in by the court.

Singh said that the single judge himself said that on climbing steps there's a divergence and the steps are Mohammedan property.

"Please see the public order perspective. Who's the best to judge public order? State of course. If State falters in the matter of public court, Court can ensure we do not digress from public order. Imagine lakhs of people coming in the narrow steps. The right is not unfettered. State can consider public order," he said.

Meanwhile the court orally asked, "Have you informed the court about this difficulty?...". It further said that the single judge had not asked lakhs of people to go but had only asked temple authorities to light the lamp. Singh however said that the devotees would go to the hill if lighting of the lamp is permitted.

"Deepathoon is a figment of judge's imagination or petitioner's imagination that the judge had latched on to," he said.

Country discussing as if Tamil Nadu is against Hindus

Singh said that the single judge did not consider whether the light can be reached through the steps without disturbing the rights of Dargah, and that communities have been living in peace which is being disturbed by the single judge's order and questioned if it was constitutionally permitted.

"Today all over India it's being discussed as if Tamil Nadu is against the Hindus. Is that what Tamil Nadu is doing? Judge has made the case beyond the representation and asked them to go and light in addition. What's additional? If the judge feels deepathoon is right place to light, then every Hindu would like to be there. Why would the Hindus compromise on their right?," he said.

Singh submitted that this was not a case where the single judge had any material.

"I don't know where the judge is going. What is he doing in the process. If he wants to contest elections soon, maybe that's a different issue," Singh said. To this the counsel for the petitioners submitted that it was very unfortunate that such a submission was being made.

Singh thereafter said that even if it was the deepathoon, the single judge had no business to direct lighting of lamp there.

"He could have best requested the authorities to explore the possibilities. That's the only thing he could've done. Nothing beyond what was done in 1996. It's a case where he has gone beyond. Completely contrary to his oath saying you light lamp using steps of the dargah," he said.

Singh said that even if temple authorities decide to light lamp at someplace else, it should be done months in advance as arrangements would have to be done for accommodating lakhs of devotees.

Flight of steps from Nellithope to hilltop belongs to the Mosque: Wakf board

Meanwhile advocate Abdul Mubeen appearing for the Tamil Nadu Wakf Board referred to a 1920 court order about the area belonging to the Hazarath Sultan Sikkandar Badhusha Avuliya Dargah, and said, "The finding is very clear that flight of steps from Nellithope to hilltop belongs to the Mosque".  He said that the findings in the order stated that the mosque and its adjuncts belong to the Mohammedans.

Mubeen said there was an observation that Magistrate interdicted the lighting of the lamp because it was not customary to put a light.

Mubeen said, "Learned judge had given a finding that the summit of hill and its adjuncts belongs to the mosque and that lighting at the top of hill is not customary. This is way back in 1862. The judge (single judge) had missed these findings. This was not addressed. The 1994 judgement begins with saying that the parties must respect, remember and give regard to the judgement and degree in 1920 case. It (1920 order) stands even today, it was approved by the privy council". 

Can't access deepathoon without going through Dargah

Mubeen argued that the single judge had said that one has to climb rocks to reach the stone Deepathoon; however he hasn't answered whether it can be accessed by the Dargah.

"I've been instructed to submit that it can be accessed only through the Dargah. The word deepathoon is coined for the first time here. I'm not offended if its called a deepthoon also. After all every faith has its own...," Mubeen added.

He referred to photos of the hillock area to state that the deepathoon could be accessed only by passing through the Dargah. He said that the mandapam on the hill also belongs to the Mohammedans as per the 1920 order and the access to the hill would be through the Dargah premises

Mubeen said that the issue in the matter was a question of title, right of passage, easement right, which can only be decided in a civil suit. He said that the single judge could not have given a specific finding in the writ petition. 

"With all humility I would say that the relief granted in the decree is similar to partition where property has been given to both the brothers of both faith...When there has been a partition (through 1920 decree), can the single judge say that to reach the Deepathoon you can use the steps (of Dargah)? Whether it's a deepathoon or pillar is a disputed question of fact. Coined for first time in this case. Earlier petitions were to light karthigai deepam at the top of hill. Not deepathoon," Mubeen said. 

Anyone can climb steps, but my right is affect when purpose is to light the lamp

He said that the 1920 order says mosque and its adjuncts and adjuncts would mean those things which are additionally attached to the upper area in the mosque. He said that the earlier order had settled the case in favour of the Mohammedans.

"Any brother can climb the steps. But if the purpose of the person is to light, then my rights are affected. If my brother climbs the steps with me for a stroll, I don't mind. There's no specific purpose. But when for different purpose, it unsettles the judgement," he said. 

Concluding his arguments Mubeen suggested that the issue may be solved through mediation between parties and a senior retired judge could be appointed.

Disingenuous to argue that there was no practice: Devotees 

Senior advocate Guru Krishna Kumar appearing for the writ petitioners (respondents before division bench) on the practice of lighting of lamp said, "The very fact that the issue has been festering is evident from the litigations which have occurred over the period of time. It would be rather disingenuous for any party, particularly the State, to argue saying that there has never been a practice like this. It's like an ostrich burying it's head in the same and saying there's no issue". 

The counsel referred to a 1996 order which took note of a submission about a stone deepam pillar near the Kasi Viswanathar Temple

He said that it was open to the Devasthanam to permit lighting for future years at any place in the hill with prior approval of the State Hindu Religious and Charitable Endowments Department authorities.

Devasthanam must act as per order

"This liberty is carved out to the devasthanam. And a worshipper goes to authority to permit lighting at another place, the authority stonewalls it. I would submit that it's a right coupled with a duty or power coupled with a duty to the devasthanam. When a worshipper approaches the devasthanam, it has to act in accordance with the judgement," he said. 

He said that said the petitioners made a representation to the temple's Executive officer and the only thing the EO could have said that this was not something he can respond to and it's for the temple board to decide; however the EO gave a response on merits. 

State mistaking regulation as control over temples

Kumar said:

"This litigation is representative of the stand being taken by the State in such matters of mistaking regulation under HR&CE Act to be right of ownership and accessing all control over temples. The fact that entire state machinery starting from the highest level down to the Joint Commissioner etc has filed appeals. It's proof of that. Irony or ironies, one of the appellant said temple board was not made party and only they could decide. They didn't say that before single judge. The entire state machinery before single judge said it can't be allowed". 

He said that one of the counsel for HR&CE said, "I'm the temple board". Questioning this Kumar said, "Is this an argument which will stand in light of HR&CE Act? The Hr&Ce department can never be the temple". 

He said that the 1996 order permitted lighting lamp at any other place other than Uchi Pillaiyar temple and that the EO did not understand the import of the order and did not have authority to give response

"If res judicata were to be invoked, it is necessarily on the basis that a matter has been canvassed in earlier proceedings. Even according to them, if this issue of deepathoon is coming up for the first time in these proceedings, how will res judicata apply. It's a self contradictory argument," he added. 

On the structure Kumar said that as per the1920 judgement  devasthanam (temple management) is owner of hill, except parts which were given to Mohammedans. He said that the 1996 order stated that lamp can be lit at a location 15 meters away from the dargah, and that this order has not been challenged. 

"...This is one of the unfortunate cases where the State is going out of the way to say 'no, we'll not give right to one side'," he said. 

State not taking even hand

On the topography of the place he questioned if the steps at the location can be claimed as a proprietary right. 

"State represented by Advocate General rightly said that there's a problem of communal harmony. The 450 steps being used by one community, there's no problem. Now you want to entertain argument on hypertechnicality nitpicking on 4 steps belonging to us," he argued. 

Kumar said that the present matter was an instance of the state not taking an even hand to the entire issue. On the topography Kumar said that the Mosque is on one hilltop which is slightly detached from the rest of the terrain. He however said that he was not dealing with the location of Mosque but the pillar. 

"When there's specific reference to deepathoon, we're looking at a location other than portions where the mosque is," he added. 

The court at this stage orally asked,"...If you can show that in the place identified by you and single judge.. there's some custom..then we can say something". 

Kumar said that the temple authorities have not taken any stand. He said that the temple authorities are referring to writ rules, saying they were not given time to counter. He said that the devotees had urged the court to hear the matter urgently considering the urgency

"No case can be heard even for interim relief in the manner in which they're arguing. Have there not been occasions where courts have sat overnight, convened on a Sunday. How can it be that today you're coming and saying that no, this much time has to be given?" he added. 

He further said that the 1996 order recognises that lamp can be lit at any place other than where it's being done.

"Now the devotee or set of devotees are saying there's a judicial order recognising their liberty, please do it yourself or permit us to do. There's no need for going to establish such a thing when it is on record already," he said.

At this stage the court orally remarked, "Other place is different from particular place. If the order is light lamp at particular place, you can say you have right. It's not that the court had permitted that any worshipper asks, you go on light the lamp".

Kumar said that 'different place' has to be decided through procedure. He said that the exercise was a futility since the EO had already taken a stand. The advocate general at this stage said that nobody has pre-decided the issue

State can't say there is likelihood of problem and deny permission

Kumar meanwhile said that State cannot create something which it says is an issue, which is in it's hands to handle.

"If state says there's apprehension of law and order, it's for state to gear up its machinery to handle it," he said. 

Kumar said that Article 25 right can be interfered for public order but public order is one much higher category that law and order and on mere apprehension the State could not have said that there is an issue. He further said that State must take steps to ensure that fundamental right of all to religious freedom is not stifled. 

"If a devotee has locus to move the court to evict encroachers, they surely have right to say that an order of court is not being given effect to or its being denied, please enforce it. A right is asserted. Talking of possible breach of peace, that's being put very diffusely. The learned single judge has taken note of the peace committee meeting...There's no objection to the peace committee meeting. The state cannot simply say there's likelihood of problem, therefore I'll not permit. You can come up with any kind of possible scenario on apprehension. Ultimately the administration is there to handle the situation," he emphasized.

He further said that a practice of lighting temple a lamp for one day, by the devasthanam and subject to regulation, cannot be equated with that situation (of animal sacrifice)Kumar further said that not every devotee would come to the hill for lighting lamp. 

"State has misunderstood it's role under HR&CE Act. It's an unfortunate matter. Please see appeal by Commisioner (police). Taking all stand on merits. What's their role? To implement the order by court to maintain law and order. We have been taught to canvass correctness of judgements, not about judges. What has been submitted is wholly exceptionable. In light of all of this, there's no case made out for interference," he said. 

Meanwhile the court asked Kumar if his party would be willing to mediate, to which Kumar said that any other situation, they would've agreed but in the present instance it would be an attempt to delay the case. 

The matter will be further heard on Wednesday.