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State Govt Order Permitting Only A Muslim Priest To Perform Rituals At Datta Peeta Violates Right To Religion Of Both Hindus And Muslims: Karnataka HC

 

It is most refreshing, most reassuring and most rejuvenating to see that the Karnataka High Court has as recently as on September 28, 2021 in a learned, laudable, landmark and latest judgment titled Sri Guru Dattatreya Peeta Devasthana Samvardhana Samithi vs The State of Karnataka and others in Writ Petition No. 18752 of 2018 (GM-R/C) minced just no words to make it absolutely clear that the Government’s order permitting only a Mujawar (Muslim Priest) to perform the rituals at the Datta Peeta – a holy cave shrine in Chikmaguluru which is revered both by Hindus and Muslims communities amount to a flagrant violation of both communities guaranteed by Article 25 of the Constitution of India. The Court very rightly said in its commendable, cogent, convincing and composed order that, “…the impugned order infringes the right of both communities guaranteed under Article 25 of the Constitution by preventing Hindus from performing pooja as per their faith and compelling the Mujawar to offer pooja contrary to his faith.” This was just not done! So, no wonder that the Karnataka High Court rightly termed it as a flagrant violation of right to religion of both Hindus and Muslims.

To start with, this brief, brilliant, bold and balanced 40-page judgment by a single Judge Bench comprising of Justice PS Dinesh Kumar of Karnataka High Court sets the ball rolling by first and foremost putting forth in para 1 that, “Shri Guru Dattatreya Peetha Samvardhana Samithi (Petitioner – Trust) has presented this writ petition with a prayer inter alia to issue a writ of certiorari and to quash the impugned Government Order (No. RD 14 Muzarai 2009 dated 19.03.2018) ; and to direct the State Government to implement Endowment Commissioner’s Report dated 10.03.2010.”

While elaborating on the petition averments, the Bench then enunciates in para 2 that, “As per petition averments, petitioner is a religious and charitable Trust registered under the provisions of the Indian Trust Act inter alia with aims and objectives to protect and develop Shri. Guru Dattatreya Peetha Devasthana, the Cave Temple at Inam Dattatreya Peetha village in Chandradrona Parvatha, Chickmagaluru.”

Furthermore, the Bench then elaborates upon in para 3 that, “The ‘Peetha’ is a major Muzarai Temple under Mysore Religious and Charitable Institutions Act, 1927. On 06.04.1973, the Karnataka State Board of Wakf took over the management of the Peetha. Two devotees namely Sriyuths. B.C. Nagaraja Rao and C. Chandra Shekar filed a suit before the learned Civil Judge, Chickmagaluru for a declaration that plaint schedule Institution is a holy place of worship belonging to Hindus and Mohammedans and upon transfer to the Court of learned District Judge, it was registered as O.S. No.25/1978; and decreed on 29.02.1980. The Karnataka State Board of Wakf challenged the judgment and decree in RFA No.119/1980 before this Court and it stood dismissed vide judgment dated 07.01.1991. The SLP (Civil) No. 17040/1991 filed thereon, also stood dismissed on 01.11.1991.”

To put things in perspective, the Bench then envisages in para 4 that, “The Tahasildar, Chickmagaluru called upon fifth respondent’s father to submit accounts with regard to the rents collected during the festivals. Fifth respondents father challenged the same in W.P. No.2294/1984 contending inter alia that he was the Sajjada Nasheen of Shri Guru Dattatreya Bababudan Swamy Darga and the direction issued by the Tahasildar, infringed his right of management of the Institution. This Court noticed that the decree passed in suit was not challenged by the State Government, but the RFA filed by the Wakf Board was pending consideration in this Court. It also noted that the State Government and the Muzarai Officers were required to act in terms of the decree and as such, the State Government had directed on more than one occasion that the Institution be restored to the Sajjada Nasheen to be administered as per practice prevailing prior to 1975, but no enquiry was made with regard to practices prevailing prior to June 1975. On 01.03.1985, this Court has disposed of the writ petition with following directions:

“The Commissioner for Religious and Charitable Endowments in Karnataka shall have the matter enquired into through the Muzrai Officer and report made to him, regarding the practice that was being followed or prevailing prior to June, 1975 in respect of management of the affairs of “Sri Guru Dattathreya Swamy Peeta” otherwise known as “Sree Gurudattathreya Bababudnaswamy Dargha” including conducting of Urs or festival, its property and all other matters pertaining to the institution. The Petitioner and devotees of the institution shall be afforded an opportunity in the course of the enquiry. A Public Notice shall also be issued in this regard. The commissioner shall on receipt of the report, take a decision after affording an opportunity of hearing to the Petitioner and other persons concerned, if any. On such decision being taken by the Commissioner, it is open to the Petitioner to challenge the same in accordance with law. The enquiry shall be completed and the decision shall be taken on or before the end of August 1985.””

Needless to say, the Bench then discloses in para 5 that, “Pursuant to the above directions, the Endowment Commissioner, submitted a Report dated 25.02.1989 codifying the religious practice prior to 1975.”

As it turned out, the Bench then discloses in para 6 that, “Petitioner filed a public interest writ petition registered as W.P. No.31580/2000 with a payer inter alia for a direction against the Deputy Commissioner, Chickmagaluru to handover the management of the Temple to the petitioners. This Court, while disposing of the said petition, has observed that steps were taken by the authorities to appoint the Managing Committee and the same had been challenged in Writ Petitions No.52801 & 38148/2000, and it was open for the petitioner to implead itself in the said proceedings. Petitioner got itself impleaded in W.P. No.38148/2000 and also filed a separate writ petition registered as W.P.No.43621/2003 challenging Endowment Commissioner’s order dated 25.02.1989. It was considered along with W.P. No.38148/2000 and W.P. No.4262/2002; and disposed of by common order dated 14.02.2007. The order passed by the Endowment Commissioner was quashed. The matter was remitted to the Endowment Commissioner to pass fresh orders. The State Government challenged the said order in Writ Appeal No.886/2007 and the same stood dismissed vide order dated 04.08.2008.”

Simply put, the Bench then reveals in para 7 that, “An organization by name ‘Citizens for Justice and Peace’ challenged the order passed by the Division Bench in SLP. No.29429/2008. The Hon’ble Supreme Court of India passed an interim order on 01.12.2008 and directed the Endowment Commissioner to submit his Report and directed to maintain status-quo as per earlier report of the Endowment Commissioner dated 25.02.1989.”

Be it noted, the Bench then brings out in para 8 that, “The Endowment Commissioner submitted his Report dated 10.03.2010 before the Apex Court suggesting inter alia that a Hindu Archak be appointed by the Management Committee for performing daily pooja. The Sajjada Nasheen and some contesting respondents raised objections to the said Report. The State Government took a stand before the Apex Court that in view of the sensitive nature of the issues involved in the case, it was required to be considered by the State Cabinet and a decision would be taken thereafter. The Civil Appeal No.2685/2010 (SLP No.29429/2008) and Civil Appeal No.2686/2010 were disposed of on 03.09.2015 with the following order:

“2. Objections to the said Report have been raised by the appellant in C.A No.2686 of 2010 who claim to be Sajjada Nashin and also by some of the contesting respondents in the present appeal i.e. C.A No.2685 of 2010. 3. Shri Basava Prabhu S. Patil, learned senior counsel appearing on behalf of the State has submitted that in view of the sensitive nature of the issues involved the Report of the Commissioner is required to be considered by the State Cabinet and a decision thereon will be taken after considering the various pros and cons of the matter. Having regard to the issues involved and the stand taken by Shri. Patil on behalf of the State, we are of the view that, at this stage, the State should be left free to take its decision on the result of the Enquiry of the Commissioner as indicated in his Report. The State Government will naturally be duty bound to take into account all objections that may be raised against the said Report including the objections raised by the parties to the present appeals, as indicated above. Thereafter, the State Government will decide the matter. In case any of the contesting parties have any grievance against such decision that the State Government may take, it will be open for them to seek recourse to the legal remedies as may be available.

4. In view of the aforesaid directions, we do not consider it necessary to keep the civil appeals pending any longer. Both the civil appeals and the contempt petition shall stand disposed of in terms of the above.

5. Status quo granted by this Court on 1st December, 2008 will continue until the State Government decides the matter in accordance with the present directions.” (Emphasis supplied).”

It cannot be glossed over that the Bench then reveals in para 9 that, “The State Government appointed a High level Committee consisting of a former Judge of this Court and two others, to consider among other things, the recommendation made by the Endowment Commissioner in his order dated 10.03.2010. The High Level Committee submitted its Report on 03.12.2017 with a recommendation to continue the nature and character of religious practices, which were prevailing as on 15th August 1947. Pursuant thereto, State Government have issued the impugned order.”

As we see, the Bench then observes in para 17 that, “Undisputed facts of the case are, suit in O.S.No.25/1978 has been decreed on 29.02.1980 in following terms;

“This suit coming on for final disposal before Sri.P.Jayaram, B.A., LL.B., District Judge, Chikmagalur in the presence of Sri. D. Lakshmikanta Iyengar, Advocate for the plaintiffs and by Sri. K. Durgoji Rao, Government Pleader for D1 and D-3 and by Pleader Sri. M.D. Vasantha Kumar for D-4 and D-2 absent. It is ordered and decreed that not only in favour of plaintiffs, but also in favour of the Hindu Devotees or disciples of “Sri Guru Dathathreya Swamy Peeta” declaring that the plaint schedule Institution is a religious institution being a holy place of worship belonging to or of the Hindus and Mohammadans alike where they worship, it is not a Wakf property and therefore, the inclusion of the plaint schedule property in the list of wakfs by the second defendant is improper and illegal, and such inclusion will not affect the rights of the plaintiffs or the Hindus, and that the 2nd defendant has no right to control or manage the suit schedule institution, the administration, management and control of the said suit schedule property be retransferred from the control of the second defendant to the third defendant as it was being managed prior to June 1975, the 2nd defendant is hereby restrained by means of a permanent injunction not to interfere with the plaintiffs’ or Hindus’ rights in respect of the plaint schedule institution or property. Since it is a suit on behalf of the entire community of Hindus and it is against the order of the Government in transferring the suit schedule property from its Muzrai Department to the Wakf board and as it is not the fault of the 2nd defendant in including the suit schedule property in the list of wakfs, I feel that in the circumstances to direct the parties to bear their own costs of the suit. Advocate fee of Rs.100/- (Emphasis Supplied).”

To be sure, the Bench then reminds in para 41 that, “It is settled principle of law that justice should not only be done but be seen to be done. Nearly, a century back, Lord Hewart, CJ, has stated that it is not merely of some importance, but of fundamental importance that justice should both be done and be manifestly seen to be done ( R Vs. Sussex Justices (1923) All ER 233 at 234).”

Most significantly, what cannot be missed out and what is most troubling to note is that the Bench then holds in para 50 that, “Article 25 of the Constitution guarantees Freedom of Conscience and free profession, practice and propagation of religion. By the impugned order, firstly, the State have infringed upon the right of Hindu Community to have the pooja and archana done in the manner as per their faith. Secondly, State have imposed upon the Mujawar to perform ‘paduka pooja’ and to light ‘nanda deepa’ contrary to his faith. Both these acts amount to flagrant violation of rights of both communities guaranteed by Article 25 of the Constitution of India.”

It also cannot be lost on us that the Bench then also points out in para 51 that, “Though the versions of large number of devotees recorded by the Endowment Commissioner including that of the Mujawar who was working during 1975, demonstrate that both Hindus and Muslims were worshipping as per their respective customs, the State Government have chosen to accept the High Level Committee’s recommendation to reject Endowment Commissioner’s Report. As recorded hereinabove, the High Level Committee Report is not free from the vice of bias.”

What’s more, the Bench then underscores in para 52 while citing the relevant case law that, “The Constitution Bench of the Hon’ble Supreme Court of India, in M.Siddique Vs. Mahanth Suresh Das, the Ram Janma Bhumi Temple case 6 (2020)1 SCC 1 (para 809) has held that faith is a matter for the individual believer. Once the Court has intrinsic material to accept that the faith or belief is genuine, it must defer to the belief of the worshipper. The relevant portion in the passage reads thus:

“809. ……. Faith is a matter for the individual believer. Once the court has intrinsic material to accept that the faith or the belief is genuine and not a pretence, it must defer to the belief of the worshipper This, we must do well to recognise, applies across the spectrum of religious and their texts, Hinduism and Islam being among them. The value of a secular Constitution lies in a tradition of equal deference.” (Emphasis supplied)”

Most remarkably, the Bench then hastens to add in para 53 that, “Therefore, the impugned order is unsustainable in law for more than one reason:

• Firstly, because, contrary to the stand taken before the Hon’ble Supreme Court of India that the Cabinet would consider the pros and cons and take a decision, the State Government have delegated the consideration to a High Level Committee;

• Secondly because, the recommendation of the Sub-Committee, has been incorrectly extracted in the impugned order. The recommendation extracted gives an impression that the practices recommended are in consonance with the order of this Court (Common order dated 14.02.2007 in W.Ps. No.38148/2000, 4262/2002 & 43621/2003), which is factually incorrect because, the six recommendations recorded in the impugned order are those contained in the earlier Report of the Endowment Commissioner dated 25.02.1989 which has been quashed by this Court. Therefore, the decision arrived at, is on an incorrect premise and hence vitiated;

• Thirdly because, the High Level Committee has mis-directed itself with regard to the 1991 Act, when the issue in dispute has attained finality as per the decree in O.S. No.25/1978;

• Fourthly because, it is nobody’s case that the place of worship is being converted. On the other hand, it is the common case of both communities that it is a place of worship for both Hindus and Muslims;

• Fifthly, because, the High Level Committee Report is not free from bias, as Shri. Rehamat Tarikere, one of its Members has deposed before the Endowment Commissioner and the Committee has recommended rejection of his Report;

• Sixthly, because, the impugned order infringes the right of both communities guaranteed under Article 25 of the Constitution by preventing Hindus from performing pooja as per their faith and compelling the Mujawar to offer pooja contrary to his faith.”

For the sake of clarity, the Bench then mentions in para 54 that, “So far as the contentions urged by Smt. Neela Gokhale are concerned, the same are noted only to be rejected because, according to her, the only option for the petitioner is to seek review of the order of the Apex Court dated 06.04.2018. That order was passed on the contempt side and Hon’ble Supreme Court of India, in its order dated 03.09.2015 has granted liberty to any contesting party to seek recourse to a legal remedy as may be available. Her next contention with regard to the locus standi is also untenable because, petitioner was a party respondent in SLP No.29429/2008.”

Finally, the Bench then holds in para 55 that, “In the light of the above discussion, the question formulated by this Court at para 16 is answered in the affirmative. Resultantly, the impugned order is clearly unsustainable in law and liable to be quashed. Hence, the following:

ORDER

(a) Writ Petition is allowed.

(b) The order dated 19.03.2018 passed by the first respondent, State Government is quashed.

(c) The matter is remitted to the State Government with a direction to reconsider the matter afresh in accordance with law without reference to the Report of the High Level Committee.

No costs.”

In conclusion, the Karnataka High Court has very rightly and firmly affirmed the concept of equality and has also reiterated that the Karnataka State Government order permitting only a Muslim priest to perform rituals at Datta Peeta violates right to religion of both Hindus and Muslims and so it cannot be justified under any circumstances. What the State Government of Karnataka did was patently wrong and this alone explains why the Karnataka High Court most commendably quashed the order of the State Government and remitted the matter to the State Government with a direction to consider it afresh in accordance with law! Of course, the same now must be urgently done with accordingly by the State Government of Karnataka!

Sanjeev Sirohi

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