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

The Madras High Court on Thursday reserved its verdict in a batch of appeals preferred against a single judge order permitting lighting of Karthigai Deepam (lamp) at the Deepathoon (stone pillar) in the Thiruparankundram Hills, close to a dargah.The bench of Justice G Jayachandran and Justice KK Ramakrishnan reserved orders after a marathon hearing spanning 5 days. It heard the State, the Executive officer of the temple, the Hindu Religious and Charitable Endowment Department, the district and police authorities and the devotees who had approached the single judge.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 RemedyThe 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 AppealThe 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...

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

Upasana Sajeev

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