Stringent Restriction on altitude of the idol concerning the health and safety of the public: Cuttack High Court

 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.284621 Balubazar Puja Committee and Petitioners Mr. Pitambar Acharya Senior Advocate versus State of Odisha and another Opposite Parties Mr. Debakanta Mohanty A.G.A. for the State CORAM: THE CHIEF JUSTICE JUSTICE B.P. ROUTRAY Order No. 02. 1. The Balubazar Puja Committee and three of its office bearers have filed the present petition aggrieved by Clause 4 of the Order No.4534 R&DMdated 9th August 2021mandating that in light of the threat to health and safety of the people as a result of the Covid 19 pandemic the Puja Committees organizers in urban and rural areas while conducting Puja in Mandaps Pandals will adhere instruction that “the size of idol shall be less than 4 feet.” 2. The Petitioners have also filed an additional affidavit quoting a purported statement of a Government official that 2 increasing the height of the idol would not pose any threat of spread of COVID 19. 3. Mr. Pitambar Acharya learned Senior Advocate appearing for the Petitioners has strenuously pleaded for waiver of the above condition specific to the Puja celebrations being organized by the Petitioners. According to him the deity of Maa Durga has been worshiped since 1509 without interruption and disruption. He maintains that in Cuttack city in particular the Durga Puja festival has a special significance. According to him the clay statute of goddess Maa Durga of the Balubazar Puja Committee known as Mrunmaya Murti has been constructed since 1514 with a height of 7.5 feet to 8 feet. The festival of Maa Durga has been known as Sarbajanin Durga Puja from the year 1882 onwards. According to Mr. Acharya the situation that prevailed as a result of the Covid 19 pandemic in the months of September and October in 2020 was dire whereas at present there is no lockdown. According to him therefore there is no justification in the State Government insisting that the height of the idol should not exceed 4 feet as that had no nexus to the danger posed by the pandemic. This according to Mr. Acharya has hurt the religious sentiments of the people of Cuttack. He submits that the State government should not be ‘adamant’ in insisting on enforcement of the above restriction on the height of the idol. He assures that the Petitioners will adhere to all other restrictions imposed by the impugned Order dated 9th August 2021. 3 4. Appearing on advance notice Mr. Debakanta Mohanty learned Additional Government Advocate for the State Opposite Parties points out that the impugned Order dated 9th August 2021 is a virtual reproduction of the Order dated 10th September 2020 that was in place during the corresponding four months of in 2020. He points out that in 2020 initially W.P.(C) No.21016 of 2020 was filed on the issue of the restrictions on the holding of pujas and festivals. That writ petition was disposed of on 31st August 2020. On the basis of the observations in that order the State Government issued the Order dated 10th September 2020. It may be mentioned here that in the order dated 10th September 2020 issued by the State Government there was a restriction on the height of the idol not exceeding 4 feet. 5. The said Order dated 10th September 2020 was challenged in W.P.(C) No.23501 of 2020. That writ petition was disposed of by this Court on 16th September 2020 by an order the operative portion of which reads as under: “Having regard to the rival submissions and on perusal of the material on record we find that the petitioners had earlier approached this Court in W.P.(C) No.21016 of 2020 which was decided on 31.08.2020. Nothing was submitted by petitioners in that petition either in pleading or during argument about the size of the idol in the meeting convened on 28.8.2020 which was also attended by petitioner no.1 Suryakant Sanganeria. The State Government keeping resolution adopted in the said meeting and having regard to the order of this Court issued the in mind 4 impugned order on 10.9.2020. This order covers not only Durga Puja but also would apply to other Pujas such as Laxmi Puja Kali Puja and Kartikeswar Puja which are likely to take place in the months of October November and December this year. This Court at this stage is not inclined to interfere with the decision of the State Authorities fixing the norms for holding Durga Puja and other pujas to contain the spread of COVID 19 and issue any specific direction. Again we consider the assertion of the petitioners and interveners that the idol of Maa Durga of the size of 7 feet has already been completed and also considering that as per the age old customs and rituals such construction has to be completed before ‘Mahalaya’ on which day ceremony of “Khadidhara” shall be performed this Court for that limited purpose as one time measure permit the Puja Committee represented by the petitioners Commissioner of Police Cuttack Bhubaneswar by an appropriate representation positively by 7.00 P.M. today who shall have their Puja Mandaps of all such representationists inspected by deputing any authorized officer to verify such assertion and if on verification their assertion is found to be correct shall take appropriate decision with regard to rituals of puja and immersion of idols confined to them.” others 6. Subsequently another set of writ petitions being W.P.(C) Nos.24486 24416 and 24418 of 2020 were filed by the organizers of Durga Puja in Cuttack. In the said petitions an order was passed on 16th October 2020 by this Court requiring the Government to clarify the position. 5 7. Pursuant to the order dated 16th October 2020 a memo was filed by the learned Advocate General. Paragraph 3 of that memo reads as under: “3. That pursuant to the directions of this Hon’ble Court on 16.09.2020 the puja mandaps were inspected and in all the following nine puja committees were found to be non compliant as would be evident from the following: “These inspections are documented by photographs taken on 16.09.2020 evening and 17.09.2020 morning. It shows that 142 Puja Committees have not started making idols nine Puja Committees have made idols adhering to the norms set by the State Government seven have built idols which are above 5 feet and two have exceeded 5 feet and have built idols that are 8 feet.” The names of the nine Puja Committees are as follows: i. Sikharpur Gandarpur Mahanadi Vihar ii. Nuabazar iii. Mangalabag iv. Seikhbazar v. Binod Biharivi. Alishabazar vii. Kazibazar Adipitha viii. Upper Telengabazar ix. Firingibazar” 8. In those petitions it was pointed out before this Court that some of the Puja Committees had already constructed the idols even before the State Government could issue the order dated 6 10th September 2020. Particularly as far as the Balubazar Puja Committee is concerned the status of the idols made were incomplete and upto a height of 5 feet. This was taken note of by this Court in the following passage in its order dated 20th October 2020: “Further on inspection by the authorized officer so far it relates to Balubazar Puja Committee the status of idols made 5 feet 8 feet Chief Justice Judge S.K. Guin 

Summary: The Special Relief Commissioner and Chief Secretary to the Government of Odisha mandating that the size of the idol shall be less than 4 feet in light of the threat to health and safety of the people held in the Hon’ble Justice B.P. Routray in the matters of Balubazar Puja Committee and other v. State of Odisha and another. [W.P.(C) No. 28467 of 2021]. The facts of the case arise from the petitioner have filed an additional affidavit quoting a purported statement of a government official and increasing the height of the idol would not pose any threat of the spread of COVID-19. The petitioner has strenuously pleaded for waiver of the conditions specified to the puja celebrations being organized by the Petitioner. The Durga Puja festival has a special significance. According to the petitioner, the clay statue of goddess Maa Durga of the Balubazar Puja Committee known as Mrunmaya Murti has been constructed since 1514 with a height of 7.5 feet to 8 feet. The festival of Maa Durga has been known as Sarbajanin Durga Puja from the year 1882 onwards. The petitioner contended that the no jurisdiction in the State Government insisting that the height of the idol should not exceed 4 feet as that has no nexus to the danger posed by the pandemic. Hurts the religious sentiments of the people of Cuttack. The State Government should not be ‘Adamant’ in insisting on enforcement of the above restriction on the height of the idol.  The petitioner pointed out that the Puja Committees had already constructed the idols even before the State Government could issue the order. The status of the idols made was incomplete and up to a height of 5 feet. The Durga Puja Festival itself is a combination of several elements of celebration and the idol is one important component.  The Hon’ble Court said that the Covid-19 situation may not be the same as it was in the previous month, the country as a whole and Odisha too is still not free from Covid-19 entirely. The apprehension that any large congregation of people might turn out to be a super spreader event is real and not imaginary. “The court is of the view that no case has been made out for modifying the condition in the order and that too only for the petitioner, the height of the idol should not exceed 4 feet”. Accordingly, the writ petition is dismissed.