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

A single-judge bench of Justice P S Dinesh Kumar remitted the matter back 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.

The court noted that the impugned order permits only a Mujawar to be appointed by Shah Khadri to enter the sanctum of the cave and to distribute 'teertha' to both Hindus and Muslims. He is also required to offer flowers to the paduka and light the nandadeepa. On the face of it, this portion of the order runs counter to the practices adopted by the Muslim community, because idol worship is not recognized by them.

The court referred to Article 25 of the Constitution which guarantees Freedom of Conscience and free profession, practice and propagation of religion. It said,

"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, the State government 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."

The court added,

"Though the versions of a 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. The High Level Committee Report is not free from the vice of bias."

The court then stated the reasons why the impugned order is unsustainable in law:

Firstly, because, contrary to the stand taken before the 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, 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 misdirected 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.

Case Background:

Guru Dattatreya Peetha Samvardhana Samithi had presented the writ petition with a prayer inter alia to issue a writ of certiorari and to quash the impugned Government Order; and to direct the State Government to implement Endowment Commissioner's Report dated 10.03.2010.

On 01.03.1985, the High Court disposed of a writ petition with a direction to 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."

Pursuant to the above directions, the Endowment Commissioner submitted a Report dated 25.02.1989 codifying religious practice prior to 1975. Petitioner filed a public interest writ petition with a payer inter alia for a direction against the Deputy Commissioner, Chickmagaluru to handover the management of the Temple to the petitioners. The 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. The court by its common order dated 14.02.2007, quashed the order passed by the Endowment Commissioner. 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. An organization by name 'Citizens for Justice and Peace' challenged the order passed by the Division Bench in SLP. No.29429/2008. The 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 the earlier report of the Endowment Commissioner dated 25.02.1989.

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 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 of 15th August 1947. Pursuant thereto, State Government has issued the impugned order.

Senior Advocate Ashok Haranhalli appearing for the petitioner contended "The appointment of the High Level Committee is contrary to the stand taken by the State Government before the Hon'ble Supreme Court of India and the impugned order has been passed without hearing the petitioner which is also contrary to the directions of the Apex Court. Further, the State Government has simply accepted the High Level Committee without independently considering the Endowment Commissioner's report."

The state government in its statement of objection stated "After disposal of the matter in the Apex Court, the State Government has constituted a cabinet sub-committee comprising of Law Minister, Home Minister, Minister for WAKF and Minister for Primary and Higher Education. The said Sub-Committee decided that an expert body was required to examine the Endowment Commissioner's report and accordingly the High-level Committee was constituted. The Cabinet Sub-Committee has considered the report of the High Level Committee and thereafter, the Cabinet has met and taken an independent decision as per the directions of the Apex Court."

Advocate General Pabhuling K Navadgi there are two distinct aspects in this case namely, the secular and the religious. The State Government has very carefully handled this matter by appointing a High Level Committee to examine the report of the Endowment Commissioner. In reply to the argument that petitioners were not heard by the State Government before passing the impugned order, it was conceded by him that the original file does not contain any evidence that notices were issued to the petitioner.

Case Title: Sri Guru Dattatreya Peeta Devasthana Samvardhana Samithi And The State Of Karnataka

Case No: Writ Petition No.18752 Of 2018

Date Of Order: September 28, 2021.

Appearance: Senior Advocate Ashok Haranahalli, A/W Advocate N. Jagadish Baliga For Petitioner.

Advocate General Prabhuling K. Navadagi, A/W Additional Advocate General R. Subramanya, A/W Advocate Rashmi Patel, For R1 To R4

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