TMI Blog2019 (8) TMI 1857X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be done after 48 days of darshan. 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 prevalent from time immemorial. Thus, the respondents have contended that darshan of Sri Athi Varadhar is 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. It is trite law that disputed questions of fact cannot be adjudged in writ proceedings. The aspects as to whether there are agama, rules or note as to when the deity should be taken out from the pool and how many days it should be kept for dharshan can be adjudicated only before a Competent Civil Court, and not in this writ petition. A prerogative writ, like, a Mandamus cannot be demanded ex debito justiatiae, but it can be issued by the court in its discretion, for which, it must be shown that, there is a non discretionary legal duty upon the authority against whom, the relief is sought for and that the person approaching the High Court u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arathar in the sacred pool, which is available in the inscription. In the year 1937, the 2nd respondent Devasthanam passed a resolution under the Chairmanship of A.Lakshmikumar Dhathachariar and R.Varadhachariar. The sacred pool is called as Ananthasaras, which became dry, due to which odour came from it. Kancheepuram Municipality issued notice dated 08.03.1937 to the Devasthanam stating that for the past 45 years the sacred pool has not been cleaned and therefore the deity of Lord Athi Varathar be taken out from the sacred pool and kept in the Vasantha Mandapam for Pooja and based on the pooja, the amounts donated by the public in the temple plate would be utilized for the purpose of cleaning the sacred pool. 5. Thereafter, according to the petitioner, the deity of Lord Athi Varathar has been taken out from the sacred pool in the year 1979 after a period of 42 years and around 13,000 devotees worshiped the lord. Thereafter, considering the heavy rush, the visiting days has been increased from 40 to 48 days i.e. extending to 8 days (1 MANDALAM). Therefore, according to the petitioner, there is no strict Agama Rules to show that the deity should be available for darshan only for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submitted that Athi Varadhar Vaibavam which is being celebrated in Kanchipuram, Sri Varadarja/Devaraja Temple is a very rare and fascinating occasion. It is believed that the idol was consecrated by Lord Brahma himself pursuant to his yaga at Hastigiri. This is stated to have been learnt from the texts of Hastigiri Mahatmya and Kanchi Mahatmya, the former of which is stated to be a part of Brahmanada Purana. Various Alwars and Saint Ramanuja are stated to have worshiped and had darshan of the said Lord. It is stated that this deity is made of a fig tree and is now referred as Athi Varadhar. It is also learnt that the name Athi Varadhar is actually in reference to the place Hastigiri, which means elephant hill, where the temple is located. 11. Petitioner has further submitted that it is learnt through scholars and from elders that this Athi Varadhar, who was the original moolavar of the temple was immersed in the Ananthasaras, which is a tank associated with the temple, due to threats of Muslim invasion. There are locals who hold other beliefs connected with the immersion of Varadhar and the festival pertaining to rising of Athi Varadhar. There are also certain inscripti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oming to a close. It is further submitted that there are crores of devotees eager to have darshan of Athi Varadhar from various parts of Tamil Nadu, neighbouring States and from abroad too. Further, the population of India has grown multi fold since 1937 and 1979, the Hindu society has also grown and there are crores of people, eager to participate in the festival especially due to the awareness created by the mass media and social media. It is needless to state that the efforts of the government in publicising the event has also been a major contributing factor in this. 14. Petitioner has further submitted that the authorities in charge of the festival have been flexible with the timings to accommodate the devotees by extending the darshan upto 2 AM. Further, there are no poojas are performed to Athi Varadhar as per agamas and there is only deepa aarathana and archana for the benefit of devotees and neivedya. Therefore, considering the above said facts, especially that there are crores of devotees still waiting to catch a glimpse of Sri Athi Varadhar, which many consider to be a once in a lifetime possibility and that there are no religious prescriptions prohibiting it and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der (HR CE) appearing for the HR CE has filed the counter affidavits on behalf of the third respondent in both the writ petitions. Paras 3 to 11, which is in verbatim common in both the writ petitions are extracted hereunder : 3. It is submitted that Arulmighu Devarajaswamy Thirukkovil, Kanchipuram is a Temple listed under Section 46(iii) of the Tamil Nadu Hindu Religious Charitable Endowment Act, 1959 (hereinafter referred to as the Act) and is administered by the Assistant Commissioner/Executive Trustee. 4. It is submitted that Sri Athi Varadhar Vaibhavam happens once in 40 years. Sri Athi Varadhar is supposed to be a replica of the present Moolavar Deity and is housed inside a safe chamber in Ananthasaras Pushkarani. In Ananthasaras Pushkarani there is a central Mandapam (Neerazhi Mandapam) and to the south of the central Mandapam there is a small mandapam known as Athi Varadhar Mandapam inside which the celestial body of Sri Athi Varadhar is housed. 5. It is submitted that the temple administration of the Arulmigu Devaraja Swamy Temple is the authority to decide the extension of time for worship of holy deity Sri Athi Varadhar as per the customs a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso the residents of Kanchipuram town are facing many hurdles and inconvenience, due to the flood of devotees coming from various places of Tamilnadu, other States and from other Countries. Particularly the people living in the Sannadhi street and Mada street are facing enormous hardships. Therefore for the foregoing reasons stated supra, it is, humbly prayed that this Hon ble Court may be pleased to dismiss the above Writ Petition and thus render justice. 19. Learned counsel for the petitioners submitted that from time immemorial, the time limit has been extended considering the religious sentiments and interests of the devotees. They further claimed that there had been precedents of changes made to the customs followed by the temple. Though the idol was supposed to be taken out of the tank once in 40 years, the management gave a gap of 42 years between 1937 and 1979. 20. Learned counsel for the petitioners further submitted that there are crores of people in the State, neighbouring states, other parts of the country and abroad yearning to have darshan of Lord Athi Varadhar and now it is impossible for all of them to see within the time frame that has been determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er submitted that the darshan period was extended from 40 to 48 days in 1979 because 48 days constituted one Mandalam. 26. Learned Advocate General also highlighted the inconvenience faced by the local residents and submitted that nearly one crore devotees have visited the temple in the last 48 days and the deployment of huge posse of police personnel, apart from revenue and Hindu Religious and Charitable Endowments Department officials and on that basis also, opposed any extension of time beyond 48 days for darshan. 27. We have heard Mr.Vijay Narayan, learned Advocate General appearing for the respondents and the learned counsel for the petitioners and also perused the materials on record. 28. Petitioner in W.P.No.24028 of 2019 himself has admitted that in 1979 the number of visiting days has been increased from 40 days to 48 days, but the reason according to him is due to heavy rush. He has further stated that after a period of 42 years, the deity was taken out from the pool. It is also his further contention that there are no strict Agama rules to show that the deity would be available for dharshan only for 48 days. No universal rule that the deity would be taken out on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial. The Thennachariya Dharishana Sabha has also given their opinion stated supra. 31. Based on the reports of the temple Archagas and Sthanikars and the Thennachariya Dharishana Sabha, the temple Assistant Commissioner/Executive Trustee in his letter dated 09.08.2019 has also 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 . 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. 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. Inconvenience in administration is also stated. 32. On the aspect as to whether there are no Agama rules that the deity should be taken out only once in 40 years, it is the contention of the respondents that the festival, Athivaradhar vaibham happens once in 40 years. Further on the contention that, after 1937, it was taken out after 42 years, instea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India reported in 2003(10) SCALE 141, the Hon'ble Supreme Court held that such highly disputed questions of fact which cannot be determined except on evidence are not fit to be taken up for adjudication in the exercise of writ jurisdiction. (d) In (2006) 9 SCC 256 (Himmat Singh v. State of Haryana and Ors.), the Honourable Supreme Court held that, 'the statement of the appellant or the 5th respondent was correct or not could not ordinarily be tested in writ proceedings and it is well known that in writ petition ordinarily such a disputed question of fact could not be entertained'. (e) In yet another decision reported in (2007) 7 MLJ 687 (Food Corporation of India v. Harmesh Chand), the Supreme Court held as follows: Since the facts were seriously disputed by the appellant and no factual finding could be recorded without consideration of evidence adduced by the parties, it was not an appropriate case in which the High Court ought to have exercised its writ jurisdiction. The parties could have approached a civil court of competent jurisdiction to adjudicate the matter. (f) In Gujarat Maritime Board v. Larsen Toubro Infrastructure Developm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Registrar of Trade Marks, (1998) 8 SCC 1] .) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction. 69. The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, normally , the Court would not exercise such a discretion: 69.1. The Court may not examine the issue unless the action has some public law character attached to it. 69.2. Whenev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e finds it profitable to do so: and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business. 70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages. (emphasis added) (g) In Sarvepalli Ramaiah (Dead) v. The District Collector, Chittoor District, reported in 2019 (4) SCC 500, the Hon'ble Supreme Court held as follows: 26. Judicial review under Article 226 is directed, not against the decision, but the decision making process. Of course, a patent illegality and/or error apparent on the face of the decision, which goes to the root of the decision, may vitiate the decision making process. In this case there is no such patent illegality or apparent error. In exercise of power under Article 226, the Court does not sit in 20 appeal over the decision impugned, nor does it adjudicate hotly disputed questions of fact. 35. In the light of the above discussion and decisions, we are of the view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rations will change its fundamental character. It is such permanent essential parts which are protected by the Constitution. Nobody can say that an essential part or practice of one's religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the core of religion whereupon the belief is based and religion is founded upon. They could only be treated as mere embellishments to the essential part or practices. ***** 11. ............What constitutes an integral or essential part of a religion has to be determined with reference to the doctrines, practices, tenets, historical background, etc. of the given religion. In a given case it is for the court to decide whether a part or practice is an essential part or practice of a given religion. As a matter of fact if in the earlier litigations the court arrives at a conclusion of fact regarding the essential part or practice of a religion it will create problematic situations if the religion is allowed to circumvent the decision of the court by making alteration in its doctrine..................No party could ever revisit such a finding of fact. Such an attempt will res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontinuance, or putting out, or such like, and the challenge or claime that he hath who should have the thing, is called right. 45. A prerogative writ, like, a Mandamus cannot be demanded ex debito justiatiae, but it can be issued by the court in its discretion, for which, it must be shown that, there is a non discretionary legal duty upon the authority against whom, the relief is sought for and that the person approaching the High Court under Article 226 of the Constitution of India, has to prove that he has a legal right to be enforced against the authority, for the failure of performance of a legal or statutory duty, by the authority against whom, the relief is sought for. 46. Earlier when W.P.Nos.21824, 21980, 21999, 22001 22014 of 2019, were filed, in which, the petitioner therein in W.P.No.21980 of 2019, has sought for a direction to the respondents to permit the petitioner and other devotees to worship the main deities (Mulavar) of Lord Devarajaswamy and Perunthevi Thayar, in Kancheepuram, after hearing the learned counsel for the parties, vide order dated 21.07.2019, we dismissed the writ petitions. 47. We are in agreement with the submissions made by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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