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2014 DIGILAW 787 (ORI)

Subrat Das v. State of Orissa

2014-11-21

A.K.RATH, B.R.SARANGI

body2014
Judgment Dr. A.K. Rath, J. The petitioners, styling as devotees of Lord Jagannath Mahaprabhu, have filed this Public Interest Litigation, raising the issue as to who are authorized to climb atop the Raths (Chariots) and touch the deities during Car Festival. 2. Shorn of unnecessary details, the case of the petitioners is that they are Hindus by religion and devotees of Lord Jagannath Mahaprabhu. A few unfortunate incidents occurred during the Car Festivals of the previous years relating to desirability of devotees to climb aboard the chariots and touch the deities. The matter was referred by the Temple Managing Committee to HH Shankaracharya, Puri for his opinion. On 6.11.2013, HH Shankaracharya submitted his opinion to the Temple Administration that nobody other than the sevaks, who perform rituals or seva puja of the deities over the chariots during Ratha Yatra, the HH Shankaracharya and the Gajapati Maharaja are authorized to climb on to the chariots and the devotees should have darshan from the Badadanda without climbing on the chariots. The Temple Committee accepted the opinion of HH Shankaracharya and wrote to the Government on 11.11.2013 for implementation of the recommendation of HH Shankaracharya. Thereafter, the State Government convened a high level meeting on 11.6.2014 in which decision was taken that no one except the sevaks and others connected with seva puja would be allowed to climb atop the holy chariots on the days of Ratha Yatra, Bahuda and Suna Besha, but on the other days, the existing practice would continue. Thereafter, a Writ Petition, being W.P.(C) (PIL) No.10457 of 2014, was filed before this Court seeking implementation of the decision of the Temple Committee on the recommendation of HH Shankaracharya. The said writ petition was disposed of on 20.6.2014. Thereafter, a Writ Petition, being W.P.(C) (PIL) No.10457 of 2014, was filed before this Court seeking implementation of the decision of the Temple Committee on the recommendation of HH Shankaracharya. The said writ petition was disposed of on 20.6.2014. It is further stated that the decision of the Managing Committee is final in respect of the matter as to who is authorized to board the chariots or touch the deities during the Car Festival, but then the question that remains are; whether HH Shankaracharya is the sole and absolute authority to determine a matter concerning the multitude of devotees, whether record of rights prescribe HH Shankaracharya to opine about a matter which is not a ritual of the Lord or the Temple but is a tradition or practice of darshan by the devotees, whether HH Shankaracharya, Puri can without consultation with other Shankaracharyas determine a matter concerning Hindus all over the country, whether the Managing Committee has taken all aspects including the opinion of devotees into consideration before accepting the opinion of HH Shankaracharya regarding the persons, who are authorized to climb atop the chariots and touch the deities and regarding the arrangements of the temple administration to facilitate darshan of the deities by the devotees. HH Shankarascharya has based his opinion as per the prescriptions in the record of rights of the temple since record of rights are the compendium of the rituals to be performed, the modalities, duties and responsibilities of persons concerned with the temple and the Lord etc. As per the record of rights, Gajapati Maharaja is to perform Chhera Panhara on the chariots and authorize to board the chariots for the said purpose. So far as HH Shankaracharya is concerned, the record of rights do not prescribe any ritual to be performed by him on the chariots during the Car Festival. Despite not being a person authorized to board the chariots during the Car Festival, HH Shankaracharya has included himself along with sevaks and the Gajapati Maharaja furnished his opinion and the same was accepted by the Managing Committee. 3. Despite not being a person authorized to board the chariots during the Car Festival, HH Shankaracharya has included himself along with sevaks and the Gajapati Maharaja furnished his opinion and the same was accepted by the Managing Committee. 3. With this factual scenario, the petitioners have prayed, inter alia, for a direction to the opposite parties not to allow any person not authorized in the record of rights to board the chariots during the Car Festival, for a direction to the opposite party no.3 not to board the chariots since he is not authorized to do so as per his duties prescribed in the record of rights. Ancillary prayer has also been made for a direction to the State Government and the Temple Administration to make suitable alternative arrangements for darshan of the deities when they are on the chariots by the devotees. 4. As would be evident from the averments made in the writ petition, more particularly, paragraph 5.6, the petitioners raised various issues, such as, whether HH Shankaracharya is the sole and absolute authority to determine a matter concerning the multitude of devotees, whether record of rights prescribe HH Shankaracharya to opine about a matter which is not a ritual of the Lord or the Temple but is a tradition or practice of darshan by the devotees, whether HH Shankaracharya, Puri can without consultation with other Shankaracharyas determine a matter concerned Hindus all over the country, whether Managing Committee has taken all aspects including the opinion of devotees into consideration before accepting the opinion of HH Shankaracharya on the matter etc., but confine the issue regarding the persons who are authorized to climb atop the chariots and touch the deities and arrangement of the temple administration to facilitate darshan of the deities by the devotees. 5. Heard Mr. Ashok Mohanty, learned Senior Advocate for the petitioners, Mr. R.K. Mohapatra, learned Government Advocate and Mr. D. Panda, learned Advocate for opposite party no.3. 6. Before we proceed further to decide the issue that has cropped up, we find that Rule 8 of the Orissa High Court Public Interest Litigation Rules, 2010 has not been complied with. The said Rule is quoted hereunder:- “Before filing a PIL, the petitioner must send a representation to the authorities concerned for taking remedial action, akin to what is postulated in Section 80 CPC. The said Rule is quoted hereunder:- “Before filing a PIL, the petitioner must send a representation to the authorities concerned for taking remedial action, akin to what is postulated in Section 80 CPC. Details of such representation and reply, if any, from the authority concerned along with copies thereof must be filed with the petition. However, in urgent cases where making of representation and waiting for response would cause irreparable injury or damage, petition can be filed straightway by giving prior notice of filing to the authorities concerned and/or their counsel, if any.” Admittedly, the petitioners have not filed any representation before the authorities concerned for taking remedial action. Thus none compliance of the said Rule, which is a mandatory requirement, entails dismissal of the writ petition filed in the form of Public Interest Litigation. Further, on the pleaded facts, we do not find any cause of action for filing of Public Interest Litigation. 7. The issue, who will climb atop the Rathas during Car Festival, is no more res-integra. In Bhabani Prasad Mishra Vrs. State of Odisha and others, 2014 (II) OLR-95, the question that hinges for consideration as to whether it was permissible for the devotees to climb atop the Rathas (chariots) when the deities are installed thereon for having a darshan of the deities or to touch the deities after the chariots reach Shri Gundicha Temple and before the deities are taken therein. The said issue was referred by the Managing Committee for opinion of HH Shankaracharya, Puri on the understanding that HH Shankaracharya, Puri was the final advisor on the issue of rituals of the deities as per the statutorily recognized record of rights. HH Shankaracharya, Puri, vide his opinion dated 6.11.2013 opined that “none other than the Sevaks (who perform rituals or seva-puja over the chariots during Ratha Yatra), the Shankarcharya and the Gajapati Maharaja are authorized to climb on to the chariots and the devotees should have darshan from the Badadanda without climbing on to the chariots”. The said opinion was accepted by the Managing Committee. A sub-committee was constituted to suggest the modalities for implementation of the opinion which required co-ordination with various stakeholders and law and order arrangements. It was also required bringing about consensus with the sevayat community, some of whom had opposed the said opinion. The said opinion was accepted by the Managing Committee. A sub-committee was constituted to suggest the modalities for implementation of the opinion which required co-ordination with various stakeholders and law and order arrangements. It was also required bringing about consensus with the sevayat community, some of whom had opposed the said opinion. The Managing Committee also referred the matter to the State Government to guide the Sri Jagannath Temple Administration (SJTA) for implementation of the above decision of Jagadguru Sri Shankaracharya. The petitioner represented to the State Government seeking implementation of the decision, but since no response was received, the writ petition had been filed. The Division Bench to which one of us (Dr. A.K. Rath, J) was a party held that the stand of the Managing Committee to go by opinion of the HH Shankaracharya, Puri has to prevail as far as rituals during the Car Festival are concerned. 8. The next question that survives for our consideration is as to whether the present writ petition is hit by the principles of res judicata. 9. In Forward Construction Company and others, Vrs. Prabhat Mandal (Regd.), Andheri and others, AIR 1986 Supreme Court 391, the apex Court considered the issue in the factual matrix that a plot of land was reserved under the Development Plan for Bombay and the verified Andheri Town Planning Scheme, for a bus depot of the Bombay Electricity Supply and Transport Undertaking (BEST). Best proposed to build two buildings which would include the bus Depot. The carpet area spared after meeting the needs of the depot was to be given on rent. A writ petition was filed challenging the user of the plot for commercial purposes. The same was dismissed by the High Court. In the said petition, certain provisions of Development Control Rules for change of user of the plot to commercial purpose was not in issue at all. Subsequently another writ petition was filed for the same purpose challenging the validity of the Rules. The apex Court held that provisions of Explanations IV and VI to Section 11 C.P.C. would apply even in the case of Public Interest Litigation. Subsequently another writ petition was filed for the same purpose challenging the validity of the Rules. The apex Court held that provisions of Explanations IV and VI to Section 11 C.P.C. would apply even in the case of Public Interest Litigation. The Court considered the provision of Explanations IV and VI of Section 11 CPC and observed that as Explanation VI deals with public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Thus, all other persons were bound by the decision in the earlier case. In paragraph-20 of the report, it is held as under:- “So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11, C.P.C. provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force.” It is further held that:- “In view of Explanation Vi it cannot be disputed that Section 11 applies to public interest litigation as well but it must be proved that the previous litigation was the public interest litigation, not by way of a private grievance. It has to be a bone fide litigation in respect of a right which is common and is agitated in common with others”. (Para-21) 10. The same view was echoed in State of Karnataka and another Vrs. All India Manufacturers Organization and others, AIR 2006 Supreme Court 1846. In paragraph 34 of the report, it is held as follows:- “As a matter of fact, in a Public Interest Litigation, the petitioner is not agitating his individual rights but represents the public at large. As long as the litigation is bona fide, a judgment in a previous Public Interest Litigation would be a judgment in rem. It binds the public at large and bars any member of the public from coming forward before the Court and raising any connected issue or an issue, which had been raised/should have been raised on an earlier occasion by way of a Public Interest Litigation.” 11. On taking a holistic view of the matter, we are of the consensus ad idem that the issue involved in the present writ petition has already been set at rest in Bhabani Prasad Mishra (Supra), thus the present writ petition is hit by the principle of res-judicata. The writ petition is dismissed.