Minority Community facing difficulty in enjoying granted land, Dargah tells Madras High Court in Thiruparankundram Deepam dispute

Chennai (Tamil Nadu) [India], December 16 : The Hazarath Sultan Sikkandar Badhusha Avuliya Dargah, challenging a single judge's order directing the lighting of a lamp at the stone pillar (Deepathoon) atop the Thiruparankundram Hills, submitted before the Madras High Court (Madurai Bench) on Monday (December 15) that the minority community was facing serious difficulties in peacefully enjoying the land granted to it in 1920.
A Division Bench comprising Justice G. Jayachandran and Justice K.K. Ramakrishnan was hearing a batch of appeals, including those filed by the Dargah management, assailing the single judge's direction to the temple authorities to light the lamp at the stone pillar. The single judge had earlier held that the Deepathoon was not situated on land belonging to the Muslim community and that lighting the lamp would therefore not infringe upon the community's rights.
The State authorities have also filed an appeal challenging the single judge's December 4 order passed in a contempt petition, which quashed the prohibitory order under Section 144 of the CrPC. Another set of appeals was filed against the single judge's December 9 order in the same contempt proceedings, directing the personal appearance of the Chief Secretary, the ADGP, and the DCP, and impleading the Union Home Secretary.
During the hearing, Senior Advocate T. Mohan, appearing for the Dargah, referred to an earlier judgment relating to animal sacrifice, which had declined permission for such practices on the hill. He submitted that the said order had also prohibited the establishment of basic amenities, such as toilets, electricity, and water supply, on land belonging to the Dargah. He further pointed out that prayers were not permitted at the Nellithope area, which belongs to the Dargah, because it might affect the footfall of devotees visiting the Kasi Viswanathar Temple.
"Now I can say that the crowd is likely to occupy the pathway leading up to the Dargah. It cannot be that a minority community is put to such hardship in enjoying land granted to it in 1920, and that at every stage we are forced to draw daggers to defend ourselves against such incursions," he submitted.
Mohan further contended that the Dargah was not initially impleaded as a party to the proceedings and was brought on record only at a later stage, without being afforded a proper opportunity to put forth its case. The court orally observed that it was not presently concerned with procedural infirmities in the single judge's order. In response, Mohan argued that procedural unfairness itself could vitiate an order.
The Bench orally remarked, "You take it that all those aspects would be considered. You need not waste time on that. Other seniors have pointed it out. What we now have to look at is whether there is any legal error." Mohan, however, took exception to what he described as the fast-tracking of the proceedings.
He submitted that under the writ rules, a respondent is ordinarily entitled to eight weeks' time to file a counter affidavit, and that the Dargah, having been impleaded as a party, was similarly entitled to such time. However, he pointed out that the single judge had restricted the time to just three days.
"The learned judge thought it fit to restrict it to three days. It is arguable whether such a restriction could have been imposed, and in any event, such an exercise of power ought to have been reflected, at the very least, in a docket order directing me to file a counter," Mohan submitted.
Mohan further submitted that although he had raised a preliminary objection regarding the maintainability of the plea, he was not given an opportunity to be heard and was abruptly disconnected from the video-conferencing facility. He also pointed out that while the single judge had conducted a site visit and issued an open invitation to all parties to participate, the Dargah was not represented on that day as it had not yet been impleaded as a party to the proceedings.
Mohan said that the single judge set up a new case which was not found in anyone's pleadings. He said that it was nobody's case that Dargah was attempting to take over. He said that the judge said he'll take note of pleadings by others to sustain the representation since the petitioner's representation was poorly worded.

Mohan submitted that the single judge had observed that the opposition to lighting the lamp was at the instance of certain vested interests, an observation to which he took strong exception.
He further pointed out that the petitioner had claimed to be a member of the Hindu Makkal Katchi, but had failed to disclose this fact in his affidavit. "We came to know of this only from his Twitter handle, and we have specifically stated it in our counter affidavit. He seeks police protection and maintenance of law and order, and all this has been placed on record. There are certain third parties who are attempting to stir the pot," Mohan said.
Emphasising the communal harmony in the region, Mohan submitted that, as far as Madurai was concerned, there had never been any issues between the Muslim and Hindu communities in that area. "It is only some vested interests that try to create trouble once in a while. If every devotee were to insist on his own view as to how things should be done, there would be no end to it," he added.
Mohan also contended that if the petitioners were asserting the existence of a religious custom, the same would have to be established before a civil court, as held by the High Court in an earlier judgment relating to the issue of animal sacrifice.
Meanwhile, Senior Advocate R Shunmugasundaram, appearing for the State's Hindu Religious and Charitable Endowments Department (HR&CE), submitted that in response to the court's earlier query, the Commissioner had informed that he was ready to consider the devotee's representation on the issue.
Senior Advocate N. Jothi, appearing for the Joint Commissioner, HR&CE Department, submitted that Section 4 of the Tamil Nadu Temple Entry Authorisation Act relates to the power of trustees to frame regulations. The court orally enquired whether an elected board was in place for the temple. In response, Jothi stated that an elected and nominated board was indeed in existence and was functioning effectively.
Taking the court through a book published in 1981 on the temple, authored by an archaeology expert, Jothi submitted, "This author has specifically referred to the lighting of lamps. This book ought to have been placed before the court at an earlier stage." Reading relevant portions from the book, he stated that it described the preparation of the Deepathoon using ghee for the purpose of lighting a lamp.
He further pointed out that the first photograph in the book depicted the Thiruparankundram Hill, where the impugned direction to light the lamp had been issued. He added that there was another pillar of an identical nature at Swamiyar Malai, about 20 kilometres away, and that both structures were similar in design.
"All the pillars are unfinished. Page 4 refers to another pillar. Page 5 shows the front view of two pillars. The last page also depicts a pillar of the same type. The design, podium and height are identical. Similar pillars exist at different locations. These were not constructed for Karthigai Deepam," he submitted.
Jothi also relied on another book authored by Venkataswami, a noted scholar of theology, which details the Madurai region and the Thiruparankundram Hills. He submitted that Digambaras--ascetic saints who traditionally do not wear clothes--had migrated from Madhya Pradesh to Madurai and often resided in hills to avoid being seen by others, including women.
According to Jothi, these Digambaras would frequently congregate, and the pillars in question were used as sources of light during their nighttime gatherings and discussions. "These pillars were not meant for Karthigai Deepam, but were used to provide light for the Munis," he submitted.
The court sought clarification regarding references in the book to inscriptions on the pillars and whether a similar pillar found at Samanar Malai also existed at Thiruparankundram. Jothi replied that the matter would require verification and that the periods to which the pillars belonged might differ. He cautioned that any attempt to alter or convert the nature of these pillars should not be permitted, as such conversion was prohibited under the Act.
Jothi further submitted that the petitioners had made a representation to the temple's Executive Officer at 2:15 p.m., and had proceeded to file the writ petition before the High Court on the very same day. He emphasised that the administration was required to remain secular, as the department was entrusted with managing temples catering to diverse faiths and sects, including Vaishnavites, Thengalai and Vadakalai traditions.
Jothi said that the pillar was on the left and no light was lit on it till now, and said that its nature cannot be changed. Jothi added that the petitioners cannot ask Karthigai Deepam to be lit at every pillar.
Another counsel appearing for the Dargah submitted that there were procedural irregularities in the single judge's order. He said that the single judge had recorded findings on how the Dargah would be affected; however, those findings were erroneous.
"Later, the judge states that it is not a case where the Deepathoon is located within the Dargah premises. The word 'premises' assumes significance. The entire area constitutes the Dargah premises, and I am unable to understand what exactly the judge meant by 'Dargah premises, '" the counsel said.
He further submitted that the dispute could be adjudicated only by a civil court, and that he had made a request before the single judge seeking 90 days' time to file a counter affidavit. "Natural justice varies from case to case. To establish a right, a party must be given an adequate opportunity to collect all materials and place them before the court. The court could have appointed a commissioner along with an expert to inspect the site and submit a report; the parties could then have raised their objections and produced evidence. All this could have been done. Instead, in the present case, the judge himself visited the site," he added.
Counsel argued that the judge, after the visit, noted that the deepthoon is in a different place. He said that, as per the 1996 judgment, if someone wants to light the lamp at any other place, it should be 15 meters away from the boundary of ofthe Dargah.
Today, the temple claims that the pillar is in its area. It's a matter of my proprietary rights. Let us convince them by dialogue in civil litigation. It cannot be forced upon a person. For 2000 years, there was no such practice. Not mentioned in the 1862 order. Each time they're changing their stance," he added. Another counsel submitted that Thiruparakundram is a multi-cultural complex. At this stage, the court asked, "If the ASI gives a notification saying permit them (petitioners) to do, then there's no problem?" The counsel, however, said it should comply with the law. The matter will be heard on Tuesday.