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Tradition Triumphs: Bombay HC Shields Baner Villagers' Ancient Bagad Festival from Private Landowners' Development Dreams
In a ruling blending cultural heritage with property law nuance ( Ganesh D Tapkir & Anr. v. & Ors. , 2026 LiveLaw (Bom) 161), the dismissed a by landowners challenging injunctions that protect a 400-500-year-old village festival. Justice N. J. Jamadar upheld lower courts' orders, affirming villagers' to celebrate the Bagad festival on a 10-guntha open plot near Shree Bhairavnath Paduka Mandir in Baner, Pune—now prime real estate—without infringing constitutional property rights.
From Bullock Carts to Bulldozers: The Festival's Fight for Space
Baner, once a quiet village swallowed by Pune's urban sprawl since , reveres Shree Bhairavnath as its deity. Annually on Hanuman Jayanti, 2,000-3,000 devotees gather on the suit property (Survey No. 288) for the Bagad—a ritual chariot on a bullock cart circling for over an hour. Villagers, represented by through leaders like Rahul Parkhe, fenced the land with community funds.
Trouble brewed when Ganesh Tapkir and Santosh Patil, who bought the plot in from (tracing back to a sale by Murkute family), began excavations and erected iron structures ahead of the festival. A representative suit (RCS No. 639/) sought declaration of customary rights and injunctions against obstruction, including against for potential development approvals. Trial and appellate courts granted interim reliefs, mandating by —prompting this petition.
Landowners' Rally: 'No Custom, Just Our Deed'
Petitioners, represented by , attacked the suit's foundation. They argued no under the , due to vague pleadings on , , and incidents—no revenue records, permissions, or villager affidavits beyond "." Photos were "doubtful," and prior owners never objected, they claimed. Crucially, they warned of jeopardizing property rights if "majority villagers" could claim non-existent customs via numbers. Citing Cristina Marques v. Lily Dias (2021 (4) MhLJ 788), they stressed pleading requirements.
Villagers' counsel countered: The plaint detailed 400-year history, uninterrupted use known to predecessors, with a sale deed earmarking the land for Bagad. Defendants' injunction reply barely traversed these facts—focusing on maintainability—while written statements came later as afterthoughts. Affidavits from Murkute co-owners, photos, temple proximity, and open land persistence amid urbanization proved long usage. PMC counsel supported non-interference.
Easements or Community Legacy? Court's Decisive Line in the Sand
Justice Jamadar dissected the claim's essence: Not a customary easement (tied to a dominant tenement for its benefit, per ), but a ""—exercised by Baner's fluctuating villager body over private land, independent of other holdings. Easements are private, determinate; customs public, communal.
Custom's elements ( Ram Kanya Bai v. Jagdish , AIR 2011 SC 3258)— ("shrouded in mists," per Patneedi Rudrayya v. Velugubantla Venkayya , AIR 1961 SC 1821), , , —held via non-traversed pleadings, deed ( relevance), affidavits, and site realities. No re-appreciation under ( Rajendra Diwan v. Pradeep Kumar Ranibala , (2019) 20 SCC 143)—no perversity, just sound discretion favoring to traditions.
Echoes from the Judgment: Justice Jamadar's Sharp Insights
"A is a right over property that exists and not for the beneficial enjoyment of the other property. It is the right of the community or right recognised by the community as a whole."
"An indeterminate and fluctuating body of persons, like the inhabitants of a particular village... cannot have an easement."
"The is corrective in nature. It cannot be converted into an Appellate jurisdiction in disguise."
"In the reply to the Application for temporary injunction... the entire case of the Plaintiffs... went completely ."
Festival Preserved, Suit Fast-Tracked: Broader Ripples Ahead
The petition failed; lower orders stand. Yet, balancing equities, the High Court expedited RCS No. 639/'s trial—ensuring owners aren't indefinitely stalled. This clarifies community customs trump rigid easement tests in cultural property clashes, urging evidence at trial. For developers eyeing gaothan fringes, ancient rites may demand pause; for villages, a shield against urbanization's bulldozers.
