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Sheth Motishaw Lalbaug Jain Charities & Others v/s The State of Maharashtra & Others

    Writ Petition (L) No. 6391 of 2020
    Decided On, 12 November 2020
    At, High Court of Judicature at Bombay
    By, THE HONOURABLE MR. JUSTICE B.P. COLABAWALLA & THE HONOURABLE MR. JUSTICE ABHAY AHUJA
    For the Appellants: B.M. Chatterjee, Senior Counsel I/B Shreyash J. Shah, Advocate. For the Respondents: Purnima Kantharia, Govt. Pleader, Pooja Yadav, D.P. Singh, Advocates.


Judgment Text
1. Leave granted to amend prayer clause (a) of the petition by deleting the words ".....pending the hearing and final disposal of the present writ petition...." as well as the words "For the said relief, the Petitioners places reliance on the order of this Hon'ble Court dated 10 November, 2020 in the case of Shree Trustee Aatma Kamal Labdhisurishwarji Jain Gyaanmandir Trust & Anr. v. The State of Maharashtra and Ors. [Interim Application (L) No. 5766 of 2020 in Writ Petition (L) No. 2841 of 2020]. Annexed hereto marked as EXHIBIT "A" is a copy of the said order of this Hon'ble Court.". Amendment to be carried out forthwith. Re-verification is dispensed with.

2. Rule. Respondents waive service. With the consent of parties, rule made returnable forthwith and heard finally.

3. By the present petition, the petitioners are seeking a writ of mandamus or any other appropriate writ, order or direction that the petitioners be allowed to open its temples on account of the Nirvana Anniversary of Lord Mahavira, the 24th Tirthankar of the Jains, from 13th November, 2020 to 17th November, 2020 (both days inclusive). The temples in relation to which the permission is sought are as under:

(i) Jain temple at 202-L, Panjarapole Compound, Bhuleshwar, Mumbai - 400004, managed by petitioner No. 1;

(ii) Jain temple at "Chandanbala", 4, Ratilal R. Thakkar Marg, Off Ridge Road, Walkeshwar, Mumbai - 400006 managed by petitioner No.2;

(iii) Jain temple at Kothari Heights, Mumbai Central, Mumbai - 400008 managed by petitioner No.3;

(iv) Jain temple at Deval Bhavan, 1st Kamathipura Lane, 258, Bapti Lane, Mumbai - 400 008 managed by petitioner No.4; and

(v) Jain temple at Arvind Kunj CHS, 77, Tardeo Road, Mumbai - 400034 managed by petitioner No.5.

4. The petitioners are a public trust registered and incorporated under the provisions of the Maharashtra Public Trusts Act, 1950. According to the petitioners, on account of the recent outburst of the Covid-19 Pandemic, the nation had been put under an unprecedented lockdown since 23rd March, 2020 in order to prevent further spread of the said Pandemic. Due to the aforesaid lockdown, all places of worship were closed to the public, without any exception. Even the State of Maharashtra had invoked and implemented the lockdown throughout the State to curb the infection and spreading of the said Pandemic so as to avoid a public hazard. The aforesaid lockdown was initiated by invoking the provisions of the Disaster Management Act, 2005.

5. Mr. Chatterjee, the learned senior counsel appearing on behalf of the petitioners submitted that Diwali is the biggest Indian festival marking the end of the Hindu year and followed by the Hindu New Year. It also holds a very great spiritual importance for the Jains. Diwali - Amavasya (The dark night) of the Hindu Calendar month (Aso) is the Nirvana Anniversary of Lord Mahavira, the 24th Tirthankar of this time frame. According to Mr. Chatterjee, each day of Diwali is important under the Jain customs, which are set out hereunder:

(i) The First Day - Dhan Teras (Dhanya Teras)

(ii) The Second Day - Kalichaudas

(iii) The Third Day - Amavashya (Dipavali)

(iv) The Fourth Day - The New Year

(v) The Fifth Day - Bahi Beej Parva.

6. Mr. Chatterjee submitted that considering such spiritual importance of Diwali, the Jains should be allowed to visit temples and be allowed to sit for meditation. He submitted that as always, the Jain devotees and the Trusts undertake to follow all social norms and Standard Operating Procedures (for short "SOPs") to ensure the safety of all citizens. He submitted that Jains believe in ahimsa and so their endeavour is always to see that nobody is hurt in the least and they go out of their way to make others happy. Mr. Chatterjee also submitted that whilst the Government has eased the lockdown restrictions with reference to several other activities, for some reason, temples are not yet allowed to open for its devotees. He submitted that the State Government should not discriminate or do partiality to the citizens of the State or the country.

7. Coming to the temples managed by the petitioners, Mr. Chatterjee submitted before the Court that all the Jain temples of the petitioners are of an area of more than one thousand square feet where social distancing and other norms of the State Government will be strictly observed in letter and spirit by allotting passes to the devotees entering the temples. Mr. Chatterjee submitted that in the case of Shree Trustee Aatma Kamal Labdhisurishwarji Jain Gyaanmandir Trust & Anr. [Interim Application (L) No. 5766 of 2020 in Writ Petition (L) No. 2041 of 2020] this Court, by its order dated 10th November, 2020, has allowed two temples of the said Trusts to open its doors to the devotees during the exact same period that is sought for in the present petition on the terms and conditions more particularly set out in the said order. He submitted that despite what is stated in the present petition, the petitioners herein are not seeking anything more than what was allowed by this Court vide its order dated 10th November, 2020 in the case of Shree Trustee Aatma Kamal Labdhisurishwarji Jain Gyaanmandir Trust & Anr. (supra). He, therefore, submitted that the present petitioners being similarly situated as the petitioners in Writ Petition (L) No. 2041 of 2020 (Shree Trustee Aatma Kamal Labdhisurishwarji Jain Gyaanmandir Trust & Anr.), we too grant permission to the present petitioners for opening their temples for the five day period commencing from 13th November, 2020 to 17th November, 2020 on such terms and conditions as this Court deems fits.

8. On the other hand, Ms. Kantharia, the learned Government Pleader appearing on behalf of the respondent Nos.1 and 2, as well as Ms. Yadav appearing on behalf of the respondent No.3, strongly opposed the grant of any relief. Ms. Kantharia submitted that firstly the writ petition is not maintainable as there is a mis-joinder of parties and causes of action. She submitted that the present petition is filed by five different Trusts that manage five different temples and there is not a whisper in the writ petition that the writ petition is filed in any representative capacity. She submitted, that if at all, each of the petitioners ought to have filed their separate petitions and could not have filed a single petition and sought the reliefs in the nature they are seeking today. The next submission made by Ms. Kantharia was that even if one looks at the prayer clauses in the petition, it is clear that there is no substantive final prayer, but there is only a prayer seeking interim relief. She submitted that a petition not seeking any substantive final prayer is not maintainable and is wholly defective. This is for the simple reason that there is no final prayer in the petition at all on which the petition can be disposed of. Lastly, Ms. Kantharia submittedthat even if one goes through the petition, it is wholly unclear as to what is the exact relief the petitioners seek and the entire approach of the petitioners is a very casual one. In this regard, she brought to our attention that though there is no reference at all to Exhibit-O in the body of the petition, there are some photographs that have been annexed at Exhibit-O to the petition (Pages 156 to 158 thereof). What these photographs relate to is not mentioned anywhere in the petition. She also brought to our attention paragraph 1 of the petition wherein it is stated that the petitioners are filing the present petition being aggrieved and dissatisfied by the "aforesaid impugned orders.....". However, which are these impugned orders, are not referred to in the petition and neither any relief is sought in relation to such alleged orders. She, therefore, submitted that the petitioners who approach the Court in such a casual manner and without setting out the necessary details, are not entitled to the Court's indulgence in exercising its extraordinary, equitable and discretionary jurisdiction under Article 226 of the Constitution of India. Consequently, she, as well as the learned counsel appearing on behalf of the respondent No.3, submitted that the writ petition be dismissed.

9. We have heard the learned advocates appearing for the respective parties and have also perused the papers and proceedings in the petition. We have also carefully gone through the decision of this Court dated 10th November, 2020 in Interim Application (L) No. 5766 of 2020 in Writ Petition (L) No. 2041 of 2020 [Shree Trustee Atma Kamal Labdhisurishwarji Jain Gyanmandir Trust & Anr. Vs. The State of Maharashtra & Ors.]. We must mention that one of us (Abhay Ahuja, J.) was party to the said decision.

10 On the first objection of Ms. Kantharia that the writ petition is not maintainable, we do not think the same carries much substance. The cause of action in the petition of all the five petitioners is one and the same. They all seek that their respective temples be opened for the period starting from 13th November, 2020 to 17th November, 2020. The relief sought also is common. It would, therefore, be unjust to drive the petitioners to file their individual petitions. On this count, therefore, we do not think that the petition can be held to be not maintainable.

11. As far as the other objection raised by Ms. Kantharia, especially with reference to the prayer clauses and the poor drafting of the petition, though we agree with her submission that the petition is poorly drafted, we do not think that this would be a fit case to non-suit the petitioners merely on that ground. We are mindful of the fact that this petition has been drafted overnight and moved on a very urgent basis. Taking this into consideration, it would not be uncommon for certain mistakes to creep in. It is for this very reason that we have allowed the petitioner to amend the prayer clause so that the same would read as a substantive prayer and not merely a prayer for interim relief. Though paragraph 1 of the petition refers to a challenge to some impugned orders, Mr. Chatterjee has brought to our attention that this is clearly a mistake and no orders are being challenged in the present writ petition. They are merely seeking a direction against the respondents to allow the petitioners to open their temples for the limited period as mentioned earlier and on such terms and conditions as this Court may deem fit.

12. Having said this, we must mention that under Article25 of the Constitution of India, all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate their religion. However, this freedom is subject to public order, morality and health. We also reiterate that this Court has no intention to interfere with Government policies, especially when it comes to public health and safety. Keeping the general interest of the public in mind, the Union of India as well as the State Government had initially imposed a complete lockdown due to the prevailing Covid-19 Pandemic. As time has progressed, the Union of India as well as the State Government have started the process of unlocking / lifting of the lockdown gradually. We are sure that in weeks and/or months to come, the State Government will, at the appropriate stage, also open up the doors of temples / places of worship as and when it deems it safe enough to do so. In the process of slowly unlocking / lifting the lockdown, the Government has now allowed opening of malls, restaurants, bars and gymnasiums by following certain SOPs and have also allowed passengers to commute by trains. Since the petitioners are not wanting to form any congregation by way of a procession etc. and they would be maintaining norms of social distancing and following the applicable SOPs, we do not think that by allowing the petitioners to open their temples for the limited period from 13th November, 2020 to 17th November, 2020, will cause any injury or prejudice to anyone. It would also not be out of place to mention that on the occasion of Ayanbil Tap, petitioner No.1 herein had approached this Court for allowing them to serve special meals to Jain devotees in all the three dining halls of the temple managed by them, from 27th October, 2020 to 31st October, 2020. This was allowed by this Court vide its order dated 27th October, 2020. Even in relation to this, it is not the case of any of the respondents that the said petitioner (Petitioner No.1 herein) was in breach of any compliances of following any social distancing norms or SOPs or guidelines, imposed either by the Union of India or the State of Maharashtra or this Court.

13. In these circumstances, and keeping all the relevant facts in mind, we are inclined to pass the following order: -

I. (a) The Jain Temple situated at 212-L, Panjarapole Compound, Bhuleshwar, Mumbai -400004 managed by Petitioner No.1 - Trust; (b) The Jain Temple situated at "Chandanbala", 4,Ratilal R. Thakkar Marg, Off Ridge Road, Walkeshwar, Mumbai - 400006, managed by Petitioner No.2 - Trust; (c) The Jain Temple situated at Kothari Heights, Mumbai Central, Mumbai - 400008, managed by Petitioner No.3 -Trust; (d) The Jain Temple situated at Deval Bhavan, 1st Kamathipura Lane, 258, Bapti Lane, Mumbai - 400008, managed by Petitioner No.4 -Trust; and (e) The Jain Temple situated at Arvind Kunj CHS, 77, Tardeo Road, Mumbai - 400034, managed by Petitioner No.5-Trust, a

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re all allowed to open for the performance of pujas during the five days of Diwali from 13th November, 2020 to 17th November, 2020 (both days inclusive) and at the fixed time of 6:00 a.m. to 1:00 p.m. and from 6:00 p.m. to 9:00 p.m., for not more than eight persons at a time for fifteen minutes in the temple hall. II. We make it clear that this order shall be restricted to the five petitioners before us and cannot be used as a precedent by other persons to seek permission to hold any festival / festivities which would involve, by their very nature, congregation of people. III. The petitioners, and all those in charge of the respective Temple managements, will ensure fulfillment of the above conditions and all social distancing norms and SOPs and take suitable measures in that regard. Under no circumstances shall the social distancing protocols and norms, including wearing of masks etc shall be violated, either by the Management of the temples or the devotees visiting the same. IV. We make it clear that there will be no congregation of people or any discourses or any public dining in these temples during this period. 14. Rule is made absolute in the aforesaid terms and the writ petition is, accordingly, disposed of. There shall be no order as to costs. 15. This order shall be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned shall act on production by fax or e-mail of a digitally signed copy of this order.
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