Minority Community Facing Difficulty In Enjoying Their Land: Dargah Tells Madras High Court Over Thiruparankundram Deepam Row

The Hazarath Sultan Sikkandar Badhusha Avuliya Dargah, challenging a single judge's order directing lighting of the lamp at the stone pillar in Thiruparakundram Hills, told the Madras High Court (Madurai bench) on Monday (December 15) that the minority community was facing difficulty in enjoying their land given to them in 1920. 

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 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 Chief Secretary, ADGP, DCP and impleading the Union Home Secretary.

Minority community put to difficulty to enjoy their land

During the hearing, Senior Advocate T Mohan, appearing for the Dargah, referred to the animal sacrifice judgment , which ruled against allowing such practice at the hills. He said that the said didn't allow setting up of toilet, electricity supply, water supply in the land belonging to Dargah. He said that the animal sacrifice order did not permit prayer at Nellithope area (belonging to dargah) citing that it might affect the footfall of devotees going to Kasi Viswanathar temple.

"Now I can say that crowd is likely to occupy the pathway leading upto the Dargah...It can't be that minority community is put to so much difficulty to enjoy their land given to them in 1920 and daggers drawn at every stage to defend ourselves against these incursion by them," he said.

Dargah not given enough time to respond

Mohan also said that the Dargah was initially not made a party but was impleaded later. He said that the Dargah was not given proper opportunity to represent its case. The court orally said that it's not concerned with any procedural issues with the single judge's order. However, Mohan said that even procedural unfairness can vitiate the order.

The court orally said, "You take it that all those aspects would be considered. You need not waste time on that. Other seniors have pointed it out. What we now have to look at is whether there's any legal error." However, Mohan said that he was taking exception to the fast tracking of proceedings.

Mohan said that as per the writ rules, any respondent would be given 8 weeks to file a counter affidavit, adding that the Dargah, which was impleaded as a party, was entitled to 8 weeks' time to file a response.

Mohan said, "The learned judge thought it fit to restrict it to 3 days. It's arguable whether he can (restrict) and secondly, the power must be reflected at least in the docket order which directs me to file a counter".

Mohan also said that though he had raised an objection to maintainability of the plea, he was not heard and was cut off from the video conferencing facility itself.

He said that the single judge visited the place and gave an open invitation to all parties, but Dargah was not a party since it was not part of the litigation on that day.

There has to be real and not sentimental interest

Mohan said that the single judge set up a new case which was not found in anyone's pleadings. He said that it was nobody's case that Dargah was attempting to take over. He said that the judge said he'll take note of pleadings by others to sustain the representation since the petitioner's representation was poorly worded.

"You can't use someone else's representation to sustain a representation. That's post facto justification. The petitioner in his pleadings has mentioned in two places at 15 meters and 20 meters. This controversy of distance is not something that should've engaged the court. Judge simply goes saying it's a different area. That's not the point. It's not for you to come and assert the right. It's for the temple to take an appropriate decision. There should be a real, tangible interest. Not sentimental interested. Then all the Hindus of Tamil Nadu can file a case saying they're interested in Ayodhya. Where will it stop? We've to draw a line so the courts are not flooded," he said.

Mohan said that the Single judge had said that the opposition (to lighting lamp) was at the instance of certain vested interests. To this, Mohan said that he takes strong objections.

Vested interests want to stir the pot

Mohan further said that the petitioner claimed to be a member of Hindu Makkal Katchi but did not disclose it in the affidavit.

"We find it from his Twitter handle that he claims this, and we have stated it in the counter. He says give police protection and ensure law and order. All this is noted. There are some third parties who want to stir the pot. As far as Madurai is concerned, there have never been any problems between the people, the Muslims and Hindus of that area. It's some vested interest that wants to stir the pot once in a while...If every devotee were to have his own opinion in how something should be done, there won't be an end to it," he added.

Mohan said that if the petitioners are asserting a custom, then it should be proved in a civil court, as held in an earlier order by the court in the case of of animal sacrifice.

"When it comes to my custom, I've to go to the civil court. But when they assert a custom, the writ court gives directions," he added.

Meanwhile, Senior Advocate R Shunmugasundaram, appearing for the State's Hindu Religious and Charitable Endowments Department (HR&CE), submitted that in response to the court's earlier query, the Commissioner had informed that he was ready to consider the devotee's representation on the issue. 

Temple trust board not made party before single judge

Senior Advocate AK Sriram, appearing for a party opposing the lighting at Deepathoon and not to deviate from existing practice, said that the single judge had not gone into the merits of the order of the Executive Officer (EO) of the temple, and had simply rejected it citing lack of jurisdiction. 

Sriram, "The judge said that the Trust board had merely sailed along with the order of EO. But the trust board was not made a party. Without making it a party, the order won't stand the test of law."

Sriram said that the petitioners have not stated in their affidavit from what date the deepam was lit at the deepathoon. 

He said, "The temple administration had obtained an opinion from the Sthanikars of temple's regular place of lighting of deepam in 2013. 4 Sthanikars offered opinion saying the lamp is being lit at Uchi Pillaiyar temple and that it's not against agamas." 

He said that the single judge had not considered Supreme Court orders on the opinion of experts in such matters. Sriram said that the trust board is bound to carry out customs if it's not against agamas. 

Senior Advocate N Jothi, appearing for Joint Commissioner HR&CE, submitted that Section 4 of the Tamil Nadu Temple Entry Authorisation Act pertains to power of trustees to make regulations. 

The court orally asked if the elected board is there for the temple. Jothi said that the elected nominated board is there and it is functioning.

Taking the court through a book published in 1981 regarding the temple authored by an archaeology expert, Jothi said, "This particular gentleman says exactly about lighting of lamp. This book should've been placed before the court earlier". Jothi read from the book, which he stated spoke about the preparation of deepathoon with ghee for lighting a lamp.

He said that the first photo in the book is the Thiruparakundram malai, where the lamp has been ordered to be lit. He said that there was one more pillar of the same nature in Swamiyar Malai, 20 km away, wherein both structures are built similarly.

Pillars not constructed for Karthigai Deepam

"All pillars unfinished. Page 4, another pillar. Page 5, front of two pillars. Last page, same type of thoon. Same design of pillar with same podium and height. Pillar of same type at different places. They're not made for Karthigai deepam," he added. 

Jothi cited from another book by Venkataswami, a scholar in theology, detailing the Madurai region and Thiruparakundram hills. He said that Digambaras (saints who usually don't wear any clothes) came from Madhya Pradesh to Madurai and often used to reside in hills so that others (including women) would not see them (naked).

Jothi said these Digambaras often used to congregate, and these pillars were used for light when they used to congregate to discuss at night. He says that the pillars were not for Karthigai Deepam but "for light by the Munis". 

The Court asked about excerpts from book talking about inscriptions in the pillar and whether the pillar in Samanar Malai is there in Thiruparankundram also.

Jothi said it might have to be checked and that the periods may be different. He said that any attempt to convert the nature of pillars should not be allowed, as it is prohibited in the Act. 

He also said that the petitioners had made a representation to the temple's Executive Office at 2:15 pm, and on the same day, the petition before high court was filed. He further said that the administration (the department) has to remain secular because it has to manage different kinds of faiths - Vaishnavites, Thengalai, Vadakkalai, etc. 

Nature of pillar can't be changed

Jothi said that the pillar was on the left and no light was lit on it till now, and said that its nature cannot be changed. Jothi added that the petitioners cannot ask Karthigai Deepam to be lit at every pillar.

"What'll happen if order is allowed. It says light lamp at two places. Does it happen anywhere? Murugan may have two wives but light should be lit at one place only," he said. 

Petitioners caused problems, leading to commotion

He said that the petitioners caused problems which "led to commotion and gave nightmares to officers". 

"This practice should be heavily condemned. The appeal should be allowed and heavy costs should be imposed on them. Payable to Murugan itself," he emphasized. 

Entire premise is Dargah campus

Another counsel appearing for the Dargah submitted that there were procedural mistakes in the single judge's order. He said that the single judge had said that the Dargah did not show how it will be affected; however this finding was wrong. 

"Then he says (it is) not a case that deepathoon is within dargah campus. The word campus assumes significance. The entire premise would be Dargah campus, I'm not able to find out what the judge meant by Dargah campus," the counsel said. 

He said that he had pleaded before the single judge that the matter can be adjudicated only before the civil court wherein the time to file a counter is 90 days.

"Natural justice varies from case to case. To prove title, party must be given a sufficient opportunity to collect all materials and place it before court...The court would've appointed a commissioner with an expert to find out, filed a report, parties would've made their objections, evidence could be let in, all these could've happened. Here, the judge himself has visited the place," he added. 

At this stage the court remarked, "Judge personally visiting is different from advocate commissioner's visit. Local inspection by judge is permissible". 

Counsel argued that the judge, after the visit, noted that the deepthoon is in a different place. He said that as per the 1996 judgment, it was said that in case someone wants to light the lamp at any other place, it should be 15 meters away from the boundary of Dargah. 

If temple activity takes place 15 metres away from Dargah, is there an objection? Court asks

The court then orally asked, "15 meters away from that place anywhere in the hillock, if some activity of the temple is to be carried out, you have no objection?". The counsel however said that there was no ritual in existence.

The court then said, "We want to arrive at a solution because several incidents are happening, several litigations. First you demarcate, once it's demarcated..."

The counsel however said, "If the court gives a declaration, I can't say anything. But this cannot be gone into in a writ petition".

"Today the temple is claiming that the pillar is in their area. It's a matter of my proprietary rights. Let us convince them by dialogue in civil litigation. It cannot be forced upon a person. For 2000 years, there was no such practice. Not mentioned in 1862 order. Each time they're changing their stance," he added. 

Another counsel submitted that Thiruparakundram is a multi-cultural complex. At this stage, the court asked, "If the ASI gives a notification saying permit them (petitioners) to do, then there's no problem?". The counsel however said that it should be in accordance with law. 

The matter will be heard on Tuesday.