Court Distinguishes Customary Rights from Customary Easements, Affirms Lower Courts' Injunction Against Property Obstruction
In a significant ruling, the Bombay High Court has upheld the customary rights of villagers in Baner to celebrate the annual Bagad festival on a specific plot of land, distinguishing these rights from customary easements under the Indian Easements Act, 1882. The judgment, delivered by Justice N. J. Jamadar, dismissed the writ petition filed by Ganesh D Tapkir and others challenging the lower courts' orders that granted an injunction in favor of the villagers.
The case, titled "Ganesh D Tapkir v. Baner Yethil, Samasta Gramastha Mandal Baner," revolved around the plaintiffs' claim of a long-standing custom of celebrating the Bagad festival, associated with Hanuman Jayanti, on a piece of land in front of the Shree Bhairavnath Paduka Mandir. The plaintiffs argued that the festival had been celebrated on the suit property for 400-500 years, a claim supported by historical references, affidavits, and sale deeds.
The court reaffirmed the distinction between customary rights and customary easements, emphasizing that the former are rights in gross belonging to the community rather than appurtenant to a dominant tenement. The judgment noted that such customary rights do not require ownership or possession of adjoining property.
The defendants, who had acquired the suit property from M/s Mankanis Builders, sought to challenge this custom, arguing that there was insufficient evidence to substantiate the villagers' claims. However, the court found that the defendants had not adequately contested the plaintiffs' assertions during the proceedings, leading to an injunction preventing them from obstructing the festival celebrations.
Justice Jamadar highlighted that the customary right to celebrate the festival was backed by prima facie material, including photographs, affidavits, and historical documents. The court also underscored that the supervisory jurisdiction under Article 227 of the Constitution does not permit re-appreciation of evidence, focusing instead on jurisdictional errors.
The court dismissed the petition, urging expedited resolution of the underlying suit to balance the rights of the property owners and the villagers. This ruling reinforces the legal protection of cultural and traditional practices under Indian law, setting a precedent for similar cases involving customary rights.
Bottom Line:
Customary rights of villagers to celebrate traditional festivals on specific property upheld, distinguishing such rights from customary easements under the Indian Easements Act, 1882.
Statutory provision(s): Indian Easements Act, 1882 Sections 2(b), 4; Constitution of India, 1950 Article 227.
