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TMI Blog2019 (8) TMI 1857X X X X Extracts X X X X X X X X Extracts X X X X ..... hey are heard together and disposed of, by this Common Order. 2. Mr.D.L.Vasanthakumar @ Veeravasanthakumar, petitioner in W.P.No.24028 of 2019 is the President of South India Hindu Maha Sabha a Society having been registered as Sl.No.433/2014 under the Tamil Nadu Societies Registration Act 1975. 3. Petitioner has further submitted that the Holy Athi Vardhar Deity has been taken out from the sacred pool at Kancheepuram Sri Varadharajaswamy Temple and kept in Vasantha Mandapam, for the public to worship, for a period of 48 days. According to him, when he visited the temple to worship the deity on 28.07.2019, he could not worship the deity, as there were about 5 lakh people, visiting the temple daily for worshiping the deity, Holy Athi Varadhar. Due to heavy rush, public, old aged people, could not have easy access to worship the God. Persons who eagerly visited the temple started returning to home with heavy heart and thus the same has affected his right of religious practice of freedom of worship. According to the petitioner every person is entitled to worship the deity. The devotees are affected and put to great mental agony and physical hardship. 4. Petitioner has further submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, but no steps have been taken so far, by the first respondent. Aggrieved by the same and having no other efficacious and alternative remedy, the petitioner was constrained to approach this Court under Article 226 of the Constitution of India seeking extension of the time limit from 48 days to any other appropriate days, as may be fixed by the respondents. 9. Mr.V.Krishnaswamy, petitioner in W.P.No.24053 of 2019 is a practicing Advocate and a member of Vishwa Hindu Parishad (Tamil Nadu) and currently its State Vice President. He is practicing in Thanjavur District Court, as well as in this Court. Petitioner is a devout Hindu and has been espousing the cause of Hindu Temples, society etc. Petitioner has done Kumbabishekam for the Lord Varadharajaswami temple in his native village in Tirupoonthuruthy, Thanjavur District. Petitioner has helped in maintenance of many temples in Thanjavur District and was involved in the celebration of 200 years of Thanjavur Court in 2007. According to the petitioner he was a Government Pleader (HR & CE) for Thanjavur District previously and therefore, reasonably acquainted with religious affairs and the laws relating to HR & CE. Petitioner has come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submitted that, contrary to the popular belief, Athi Varadhar festival has not been conducted once in 40 years but in the gap of 45 years, 42 years, etc. From his enquiries with the experts and learned scholars in religion, Vaishnavism, and Agamas, the petitioner came to know that the festival is not something that is derived from the Puranas or Agamas and has been a recent custom. It is further submitted that there is no injunction from the religious perspective from reducing or increasing the days of the festival. 13. Petitioner has further submitted that Athi Varadhar Vaibavam of 2019 has been an extraordinary spectacle. Every day, lakhs and lakhs of devotees have thronged to visit the temple and have darshan of the deity. It is estimated that more than 80 lakhs had darshan so far and on some days more than 4 lakh visited the temple. Further, it is anticipated that, before the completion of the festival, close to 1 crore people would have had darshan of Athi Varadhar. It is further submitted that due to the short time and the logistical constraints, the organisation of the festival has been an immense challenge to all the stake holders. Further, it is anticipated that d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for the HR & CE Department or the Trustees of the temple who generally have say in the matter, and the District Collector can only give advice as to the arrangements to be made. According to the petitioner, the temple is administered under a scheme framed by this Court in A.S.No.175 of 1934 in the year 1941 and presently, the Scheme is under modification before the department and therefore an Executive Officer in the rank of Assistant Commissioner is functioning as the Executive Trustee of the temple and no decision has been taken by the concerned officer, till date. 17. Petitioner has further submitted that worshiping Athi Varadhar, is a fundamental right under Article 25 of the Constitution and under Article 14 which provides for equality and equal protection. Further on a conjoined reading of Articles 25 and 14, there should be equal opportunity for all the devotees to worship Athi Varadhar and extension of time will facilitate many more devotees to worship and make it safer for all. Further, considering that there is no religious injunction prohibiting the same, there can be no impediment in extending the darshan time of Sri Athi Varadhar beyond 48 days. 18. When the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .08.2019 as per custom and usages which are prevalent from time immemorial. The Thennachariya Dharishana Sabha has also given their opinion as follows: 8 . It is submitted that based on the reports of the temple Archagas and Sthanikars and the Thennachariya Dharishana Sabha, the temple Assistant Commissioner/Executive Trustee has also stated in his letter dated 09.08.2019 "that the Idol of "Sri Athi Varadhar" should be immersed after the completion of 48 days as on 17.08.2019 as per custom and usages". 9. It is submitted that in the year 1937, the deity of "Sri Athi Varadhar" was taken out from the holy tank and kept in Vasantha Mandapam for poojas. The deity was again taken out in the year 1979 after 42 years instead of 40 years, due to the ongoing balalayam and the thiruppani work of the Rajagopuram. 10. It is submitted that in the year 1979, the period of 40 days of poojas of "Sri Athi Varadhar" deity has been extended to 48 days because one mandalam is 48 days. 11. It is also submitted that huge man power is being diverted by various Government Departments from other Districts of Tamil Nadu which has resulted in stagnation of day-to-day affairs of the administration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide their letter dated 07.08.2019 have made it clear that extending the darshan period beyond this would amount to violating the Agama Sastras and established custom. He further submitted that vide their letter dated 31.07.2019 a similar stand had been taken by the Thennachariya Dharishana Sabha too. During the course of hearing, he also submitted a photograph of an old plaque to prove that the idol, weighing more than 600 kg, was taken out of the temple tank last on July 2, 1979, and immersed back on August 18, 1979 after a 48-day darshan. 24. Learned Advocate General further submitted that based on the reports of the temple Archagas and Sthanikars and the Thennachariya Dharishana Sabha, the temple Assistant Commissioner/Executive Trustee vide his letter dated 09.08.2019, has stated that "the Idol of "Sri Athi Varadhar" should be immersed after the completion of 48 days as on 17.08.2019, as per custom and usages". 25. Learned Advocate General also explained the reason for the delay in taking out the idol exactly after 40 years and the time extension of 40 days to 48 days. He submitted that the idol could not be taken out in 1977 due to the renovation of temple and its rajagopura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the extension of time for worship of holy deity "Sri Athi Varadhar" as per the customs and usage of practice being followed in the temple for several years. The temple authorities are competent to make and enforce rules to ensure good order and proper worship. The established custom and usage relating to the rituals in a temple cannot be changed or violated by any external authority. Temple's Archagas and Sthanikars vide their letter dated 07.08.2019 have given their opinion that the Idol of "Sri Athi Varadhar" should be immersed as before under the Four Pillared Mandapam inside the Anadha Saras holy tank after performing poojas as per the custom and usages and Agama rules on 17.08.2019 night. The 48 days of dharshan of "Sri Athi Vardhar" should not be changed under any circumstances as anything contrary to this would violate the agama rules and established usage. The Archagas and Sthanikars have given their opinion, which is extracted above. Thennachariya Dharishana Sabha has also given their opinion vide their letter dated 31.07.2019, that the Idol of "Sri Athi Varadhar" should be immersed after the completion of 48 days as on 17.08.2019 as per the custom and usages which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for only 48 days and immersion is as per custom and usages. Contention of the petitioner that there is no agama rule as regards period of darshan is disputed. 34. It is trite law that disputed questions of fact cannot be adjudged in writ proceedings. Reference can be made to few decisions, (a) In (1976) 1 SCC 292 (Arya Vyasa Sabha and Ors. v. The Commissioner of Hindu Charitable and Religious Institutions & Endowments, Hyderabad and Ors.) the view taken by the High Court that disputed questions of fact are to be left open to be decided before the Civil Court was upheld by the Hon'ble Supreme Court. (b) In the decision reported in (2003) 4 SCC 317 (Rourkela Shramik Sangh v. Steel Authority of India Ltd. and Anr.) it is held that the disputed questions of fact could not be entertained in the writ proceedings. In paragraph 22, the Hon'ble Supreme Court held as follows: "22. ...a disputed question of fact normally would not be entertained in a writ proceeding. This aspect of the matter has also been considered by a Constitution Bench of this Court in Steel Authority of India Ltd. v. National Union Waterfront Workers (2001) 7 SCC 1...." (c) In Dharam Dutt v. Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. From the above discussion of ours, following legal principles emerge as to the maintainability of a writ petition: (a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. (b) Merely because some disputed questions of facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. (c) A writ petition involving a consequential relief of monetary claim is also maintainable. 28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks [Whirlpool Corpn. v. Registrar of Trade Marks, (19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 of the Constitution could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases the Court can direct the aggrieved party to resort to alternate remedy of civil suit, etc. 70.4. Writ jurisdiction of the High Court under Article 226 of the Constitution was not intended to facilitate avoidance of obligation voluntarily incurred. 70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the licence if he finds it profitable to do so: and he can challenge the conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As per the version of the respondents about a crore devotees had dharshan. 38. In Commissioner of Police and Others Vs. Acharya Jagadishwarananda Avadhuta and Another reported in (2004) 12 SCC 770, relied on by the learned Advocate General, at paragraph Nos.9 & 11 held as follows:- "9. ...........Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may mean any legal right as the word is normally used, or it may be limited to some specific one of the large class of recognised "rights." It may be a right to do something, to have something, to be something, or even to let alone; it may refer to a right or privilege to use a highway or other public facility, or to utilise one of the great institutions of nature, or, on the other hand, it may refer to personal liberty, security, health, or property. 42. In Wharton's Law Lexicon, the word 'Right' means; 1) is a legally protected interest 2) is an averment of entitlement arising out of legal rules 3) right is an interest recognised and protected by moral or legal rules 4) right, comprehends every right known to the law. 43. In K.J.Aiyar's Judicial Dictionary, the word 'Right' means; 1) a right is a legally protected interest, 2) a right is an interest which is recognised and protected by law. 44. In Stroud's Judicial Dictionary, the word 'Right' means, is where one hath a thing that was taken from another wrongfully, as by disseisin, discontinuance, or putting out, or such like, and the challenge or claime that he hath who should have the thin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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