Madras High Court
M.Senthil Kumar vs The District Collector on 3 April, 2023
W.P(MD)No.7550 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
W.P(MD)No.7550 of 2023
and
W.M.P(MD)No.7036 of 2023
M.Senthil Kumar ... Petitioner
Vs.
1.The District Collector
Tenkasi District,
Tenkasi.
2.The Superintendent of Police
Tenkasi District,
Tenkasi.
3.The Joint Commissioner
HR & CE Department,
Tirunelveli,
Tiruenvelveli District.
4.The Tahsildhar
Thiruvenkadam,
Tenkasi District.
1/16
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W.P(MD)No.7550 of 2023
5.The Inspector of Police
Karivalam Vanthanallur Police Station,
Tenkasi District. ... Respondents
PRAYER : Writ Petition is filed under Article 226 of the Constitution of
India praying to issue a Writ of Mandamus directing the Respondents 1
2, 4 and 5 to take necessary actions to prevent the Mahakumbabishega
festival from being conducted at the Arulmigu Vadabadrakaliamman
Temple situated at Pillaiyarkulam Village, Thiruvenkadam Taluk,
Tenkasi District, on 05.04.2023 .
For Petitioner : Mr.N.L.Rajah,
Senior Counsel
for Mr.A.Saravanakumar
For Respondents : Mr.N.Muthu Vijayan - for RR1, 2, 4 & 5
Special Government Pleader
Mr.M.Senthil Ayyanar - for R3
Government Advocate
Mr.P.Aathi Moolapandian
Unimpleaded respondent
2/16
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W.P(MD)No.7550 of 2023
ORDER
The matter has been heard through Video-conferencing.
Mr.N.L.Rajah, learned Senior Counsel for Mr.A.Saravanakumar, learned
counsel for the petitioner addressed the Court through video-conference.
Heard also Mr.N.Muthu Vijayan, learned Special Government Pleader
appearing for respondents 1, 2, 4 and 5 and Mr.M.Senthil Ayyanar
learned Government Advocate appearing for the third respondent /
HR & CE Department. It must also be stated that complaining that
necessary parties had not been impleaded, Mr.P.Aathimoola Pandian,
learned counsel also advanced arguments.
2. It appears that the issue relating to administration of
Arulmigu Vadabadrakalaiamman Temple and Kalyana Veerabathirar
Thirukovil at Pillaiyarkulam Village, Thiruvenkadam Taluk, Tenkasi
District, had been the subject matter of litigation before the Civil Court.
My attention is drawn to an order passed by the learned Subordinate
Judge, Sankarankovil in A.S.No.99 of 2014. The respondents therein can
be said to be represented in the present writ petition by the writ
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W.P(MD)No.7550 of 2023
petitioner, though the locus of the petitioner is very seriously objected to
by the learned counsels for the respondents.
3. It is stated that the petitioner resides 3 Kms., away and
cannot be termed as a local and it is alleged that the only intention in the
filing of the present writ petition is to prevent the Mahakumbabishegam
from being conducted in the temple.
4. It is common knowledge that the date for the
Kumbabishegam is determined not a day prior to the actual date of
Kumbabishegam. But for some strange reason, the petition has been
brought up before this Court for consideration today on 03.04.2023
when, in the morning at 07.00 a.m. the preliminary functions towards the
Kumbabishegam which is scheduled on 05.04.2023 had already
commenced. It either shows that the petitioner is not interested in the
Kumbabishegam being conducted or, had notice of it and had
deliberately filed the writ petition a day earlier to the date determined for
the Kumbabishegam to be done. This attitude of bringing up the writ
petition a day prior to the scheduled date, cannot be appreciated by this
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W.P(MD)No.7550 of 2023
Court. There must be some leverage given for instructions to be obtained
or to examine whether necessary parties have been impleaded. As seen,
the petitioner had not impleaded proper parties to the writ petition. There
are a string of allegations made against a particular community and even
complaining that the temple had been painted in a different colour, but
without impleading any member of the said community, though the
names are well known as seen from the cause title in A.S.No.99 of 2014.
5. In S.P.Chengalvaraya Naidu (died) through LRs. Vs.
Jagannath and Others reported in 1994 (1) SCC 1 = 1994 AIR 953, the
issue of suppression had come up for consideration before the Hon'ble
Supreme Court and the Supreme Court had widened the concept to state
that suppression would also be fraud. It had been held in paragraph No.5
as follows :
"5. The High Court, in our view, fell into
patent error. The short question before the High
Court was whether in the facts and
circumstances of this case, Jagannath obtained
the preliminary decree by playing fraud on the
court. The High Court, however, went haywire
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W.P(MD)No.7550 of 2023
and made observations which are wholly
perverse. We do not agree with the High Court
that "there is no legal duty cast upon the plaintiff
to come to court with a true case and prove it by
true evidence". The principle of "finality of
litigation" cannot be pressed to the extent of
such an absurdity that it becomes an engine of
fraud in the hands of dishonest litigants. The
courts of law are meant for imparting justice
between the parties. One who comes to the court,
must come with clean hands. We are constrained
to say that more often than not, process of the
court is being abused. Property-grabbers, tax-
evaders, bank-loan-dodgers and other
unscrupulous persons from all walks of life find
the court-process a convenient lever to retain the
illegal-gains indefinitely. We have no hesitation
to say that a person, who's case is based on
falsehood, has no right to approach the court.
He can be summarily thrown out at any stage of
the litigation".
6. In the instant writ petition, the petitioner had deliberately
suppressed impleading the necessary parties who must also be heard
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W.P(MD)No.7550 of 2023
before any order is passed in the nature of relief sought namely, to
frustrate performance of the Mahakumbabishegam itself.
7. When, in the aforementioned first appeal, the right to
administer the temple stood vested with the appellants therein, the non-
impleading of them can be categorized as deliberate suppression of not
just a material fact, but of denial to an individual of his right to be heard,
and which right had been attempted to be shut down by the petitioner
herein for the reasons only known to him.
8. Be that as it may, to focus on the issues raised, in the said
first appeal, the learned Subordinate Judge had issued two separate
directions. He had first stated that the appellants therein, have every
right to administer the temple. In the same breath, as a further
stipulation, he has also stated that both the appellants and the
respondents who are termed as plaintiffs and defendants, have every
right to worship in the temple.
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W.P(MD)No.7550 of 2023
9. Let me take that second direction as a guiding principle.
The entire issue comes under that one particular observation, rather
direction of the learned Subordinate Judge that every community has a
right to worship. That right to worship, quite appreciably had not been
denied either by Mr.Aathimoolapandian who now appears on behalf of
the unimpleaded respondents and is also asserted by the learned Special
Government Pleader and also by the learned Government Advocate on
behalf of the HR & CE.
10. In the affidavit filed, it had also been stated that reliance
should be made to orders of this Court in W.P.(MD) Nos.4205 of 2019
and 2126 of 2019 which have been filed, not by the petitioner, but by
others who are probably aligned with the petitioner herein.
11. In W.P.(MD) No.4205 of 2019, a learned Single Judge of
this Court, by an order, dated 25.02.2019, was called upon to protect the
right of the petitioner therein to play drums and musical instruments
during the annual temple festival of this very temple in the Tamil month
of Masi.
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W.P(MD)No.7550 of 2023
12. During the course of the order, the learned Single Judge
had also observed the statements made on behalf of the respondents
therein, that the issue of playing drums had given rise to serious and law
and order issues and had therefore, placed directions and conditions that
they can play music only before the deity and within the compound wall
and that there should be only 8 persons.
13. But it is to be mentioned that this order was specific to
the month of Masi which occurs every year, and if every year, there had
been a consistent practice of playing drums during the festival in the
month of Masi, that custom was recognized by the learned Single Judge
and permission was granted with certain directions.
14. In W.P.(MD) No.2126 of 2020, the relief sought was
again by the very same petitioner to beat drums and play musical
instruments, during the shining of the Sun and Moon. This was on the
basis of a representation given on 06.01.2020 which would mean that it
had been given in the Tamil month of Thai. Again, it is specific for that
particular month. Again, the learned Single Judge had stated that a Peace
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W.P(MD)No.7550 of 2023
Committee Meeting had been convened and that a settlement had been
arrived at in the Peace Committee Meeting and had therefore, reverted
the parties to abide by such decision taken in the Peace Committee
Meeting.
15. The present case is unique, for which, there cannot be a
customary practice which can be impressed upon or spoken of as a
Constitutional right to worship in a specific manner as stated by the
learned Senior Counsel. If such form of worship is in the form of a
regular practice done year after year in a particular month, then that
right blossoms to be one to be protected under the Constitution. A
Mahakumbabishegam is a stand alone and one off event. Here, the
Administrators of the temple who are the appellants in the first appeal
but who have not been added as parties are performing the
Kumbabishegam. There have been complaints that the temple was
painted in particular colours, but the learned Government Advocate
appearing on behalf of the HR & CE stated that the colour has been
removed and the temple has been repainted.
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W.P(MD)No.7550 of 2023
16. It had been uniformly assured by the respondents that
every person can worship the temple.
17. The focus should be to ensure that it is not for a
community, but for the deity that the Kumbabishegam is performed. It is
not for the benefit of any individual or for the benefit of any particular
community but for the deity to be worshipped in all glory. If there is
worship. keeping in mind the deity, then peace and harmony would
prevail. If not there is no point in stating that there is a right to worship.
Claiming right to worship with angst covering the mind cannot be
appreciated.
18. A schedule of the events have been presented before me.
It reflects that the function had started on 03.04.2023 (today) at 07.00
a.m. It goes on for the whole day and it goes on again on 04.04.2023 and
finally, it ends on 05.04.2023, which is the Panguni Uthiram day with
Maha Abisegam. The Maha Kumbabisegam is at 10.00 a.m.
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W.P(MD)No.7550 of 2023
19. Let the Mahakumbabishegam which had started,
continue to be performed. This Court can only wish that it is performed
smoothly with peace and harmony and without any acrimony. It is the
duty of each and every worshipper to maintain peace and harmony. Let
them all put aside their individual manner in which they want to worship
the deity, but let them focus on the deity and ensure that the
Mahakumbabishegam is performed well.
20. To this extent, this Court should seek assistance of the
fourth respondent/Tahsildar, Thirvengadam, Tenkasi District. A direction
is issued that the Tahsildar, should ensure that all community people
irrespective of their background, their caste, their community should be
permitted to worship and they can come to the temple. A corresponding
duty is cast upon every worshipper who enters the portals of that temple
to enter with the object to worship the deity and not anything else. Let
them put aside their personal differences to the background for these
next three days and worship the temple and move ahead.
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W.P(MD)No.7550 of 2023
21. The fourth respondent/Tahsildar, is also directed to
provide Police bandobust in that particular area to ensure that peace is
maintained. There must be due respect given to the judgment of the
learned Subordinate Judge, wherein, he had recognized the appellants
therein as the Administrators of the temple and that finding should also
be recognized by this Court since that is a judgment which prevails upon
all the parties.
22. It is informed by Mr.N.L.Rajah, learned Senior Counsel
that the respondents therein have intention to file a Second Appeal, but
that has not been filed so far. Till this date, the judgment of the First
Appellate Court stands.
23. As repeatedly pointed out, let any and every worshipper
enter the temple with object to worship the deity and for no other
purpose. Let the Mahakumbabishegam be conducted. Let the Tahsildar
be present and ensure that there is peace. Let him take the assistance of
the fifth respondent, the jurisdictional Inspector of Police to provide
necessary bandobust.
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W.P(MD)No.7550 of 2023
24. No further orders are required.
25. Accordingly, the Writ petition stands dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
03.04.2023
Index :Yes/No
Internet :Yes/No
NCC : Yes / No
RM
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W.P(MD)No.7550 of 2023
To
1.The District Collector
Tenkasi District,
Tenkasi.
2.The Superintendent of Police
Tenkasi District,
Tenkasi.
3.The Joint Commissioner
HR & CE Department,
Tirunelveli,
Tiruenvelveli District.
4.The Tahsildhar
Thiruvenkadam,
Tenkasi District.
5.The Inspector of Police
Karivalam Vanthanallur Police Station,
Tenkasi District.
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W.P(MD)No.7550 of 2023
C.V.KARTHIKEYAN, J.
RM
W.P(MD)No.7550 of 2023
03.04.2023
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