'No Material To Show Stone Pillar Is A Deepathoon': State Tells Madras High Court In Thiruparankundram Case, Verdict Reserved

Today, the bench heard rejoinder submissions of Advocate General PS Raman.

The AG argued that as of now, there is no empirical data or proof available regarding the nature of the stone pillar, claimed to be a 'stone lamp pillar'.

"On materials available either before the single judge or this judge, there's no empirical data or proof available regarding the origin & structure which is called a deepathoon," AG said. 

He further submitted that though the respondents had alleged that the State was approaching the issue with a tainted mind, the State was actually not taking a stand in the issue since there was nothing to show what the pillar was.

AG submitted that as of now, there is no material to show when the pillar came into existence and the same could be ascertained only after a detailed enquiry. He submitted that even before the deepathoon issue came up, the State Survey Department had initiated steps to determine the nature of stone pillars in Tirunelveli and Madurai area.

AG also submitted that in the 1920 order, the District Judge had made some findings, after inspecting the area, and had noted that the only structure present on top of the hill was the Dargah. He submitted that if the pillar existed before that, the judge would've mentioned it in his order.

AG submitted that the single judge, in his order had referred to a 1945 Madras High Court decision in which the court had recognised the right of worshipper to have usual festivals conducted in usual manner and to be allowed to participate in it in the usual manner. He said that in the present case, the parties were asking for a usual festival but in an unusual manner.

"The judge was confronted with a case whether petitioner's prayer was for usual festival, but not in usual manner and not in usual form of participation," he said.

AG further submitted that only the temple management could have made a decision in this matter.

"They asked the Executive Officer. What authority does EO have to decide customs? Board should've decided. If they don't take a call, there are other options. If you ask wrong question to wrong person, everything changes," he said.

No Civil Remedy

The AG also submitted that he agreed with the respondents that the matter should not go for civil suit, not because it was not a civil suit, but because the remedy was under Section 63 of the Hindu Religious and Charitable Endowment Act. He submitted that as per the Act, only the Joint Commissioner and the Assistant Commissioner could decide the established usage of a religious institution.

He pointed out that Senior Advocate R Shunmugasundaram, appearing for the Joint Commissioner had informed the court that they were ready to consider the representation under Section 63 of the Act. "Section 63 is not just an alternative remedy. It is the only correct remedy," AG said.

The AG added that provisions of the HR&CE Act provided a 4-tier remedy. He pointed out that if a person was aggrieved by the order of the Joint Commissioner, an appeal could be made to the Commissioner. A further appeal, from the order of the Commissioner, would lie before the trial court and then to the High Court. He thus argued that the Act was a self-contained code.

Customary Right or Property Right?

The AG submitted that another issue was whether the petitioners were seeking to establish a customary right or to assert a property right. he submitted that though the single judge, in his order, had initially recognised that the devotees had approached the court for a customary right, he then made it into an exercise of property right. 

"In the judgment (of single judge), though the court initially recognised that they had come for a customary right, the judge committed a grave error where he took away the customary right and made it an exercise of property right. This confusion of telescoping a customary right into a property right and saying that by creating a new custom I'm ensuring property is protected, may not be correct approach under Art 226,"  AG said.

Existing Custom Cannot Be Decided In Appeal

The AG argued that the EO had not rejected the representation merele on the basis of danger as argued by the petitioners. He submitted that the EO had noted that there was an existing custom which he would continue in order to have a harmonius and peaceful festival. He added that the question of what was an existing custom could not be decided by the court in the appeals.

"Existing custom is not a matter to be decided by this court in the present appeal. It's a matter to be relegated for adjudication in the manner," he argued.

On the respondent's argument that the hilltop was appropriate place to light lamp as per tamil tradition, the AG submitted that for more than 100 years, the hilltop was in existence and when all the devotees, for all these years, thought that the Uchi Pillaiyar temple was the appropriate place to light the lamp, the parties could not, in 2025 say that another place was more appropriate.

Countering this argument, Senior Advocate S Sriram, appearing for the respondent devotees, submitted that the question now was not whether there was a usage but whether lighting a lamp at the Uchi Pillaiyar temple was the only custom. He submitted that the devotees were seeking a resurrection/retrieval of the usage.

During the earlier hearings, the State argued that the devotees who moved the single judge seeking lighting of the lamp at Thiruparakundram Hills could not have claimed the same as a legal right, and Article 226 powers cannot be used to change a custom in existence for a long time. The Advocate General submitted that the petition was not a PIL but a private interest litigation wherein court is concerned with the right of petitioner and statutory and constitutional obligation of respondent authorities. He said that since the first round of litigation in 1920, there has been no mention of the deepathoon and the petitioner devotees have to establish that lighting lamp at deepathoon was part of customary practice.

Senior Advocate G Masilamani appearing for Executive Officer of Arulmigu Subramaniam Swamy Temple said that petitioner may have an interest in the temple and can come to court to protect the right available to him, however no such right can be assumed by the petitioner here. Masilamani said that what the petitioner had sought in the writ was a deviation from what he had sought in the representation and was not covered by the latter. He said that the petitioner's conduct lacks bonafide.

Meanwhile Senior Advocate R Shunmugasundaram appearing for the State department said that it was for the Devasthanam to take a decision and not anybody else.

The counsels for the Hazarath Sultan Sikkandar Badhusha Avuliya Dargah submitted that the minority community was facing difficulty in enjoying their land given to them in 1920. Senior Advocate T Mohan said that the Dargah was not given proper opportunity to represent its case. Mohan said that the single judge set up a new case which was not found in anyone's pleadings.

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.

Senior Advocate N Jothi, appearing for Joint Commissioner HR&CE argued that the pillar was not built for lighting Karthigai Deepam but was used by saints who used to reside in the area.

Senior advocate Vikas Singh appearing for Madurai's Collector KJ Praveenkumar and Police Commissioner J Loganathan argued that the deepathoon (stone pillar) is a figment of the judge's imagination or devotees' imagination, which the judge had latched on to. 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.