Madras High Court
P.Pushpavathi vs The Home Secretary on 17 June, 2022
Author: M.Dhandapani
Bench: M.Dhandapani
W.P.No.1553 of 2016 &
WMP.No.9183 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.06.2022
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.No.1553 of 2016 &
WMP.No.9183 of 2017
P.Pushpavathi ... Petitioner
Vs
1.The Home Secretary,
Tamil Nadu Government,
Secretariat, Revenue Department,
Fort St.George, Chennai – 600 009.
2.The District Collector,
O/o.District Collectorate,
Erode District.
3.The Assistant Commissioner,
Veerappan Chatram (Zone) Corporation Office,
Veerappan Chatram, Erode – 4.
4.The District Revenue Officer,
Perunthurai Road, Erode – 638 011.
5.The Revenue Divisional Officer,
Division Office, Prab Road, Erode – 1.
6.The Tahsildar,
Tahsildar Office, Erode – 1. ... Respondents
1/11
https://www.mhc.tn.gov.in/judis
W.P.No.1553 of 2016 &
WMP.No.9183 of 2017
Prayer: Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Mandamus, directing the respondents to remove the temple
situated in Re-survey No.277, Kaveri Nagar, 8th Ward, Veerappan Chatram,
Erode and form the children park in that place as per the approval by
considering the petitioner's representation dated 24.07.2015.
For Petitioner : Mr.R.Marudhachalamurthy
For Respondents : Mr.G.Krishna Raja
Additional Government Pleader
ORDER
The petitioner has filed this Writ Petition seeking issuance of Writ of Mandamus directing the respondents to remove the temple situated in Re- survey No.277, Kaveri Nagar, 8th Ward, Veerappan Chatram, Erode and form the children park in that place as per the approval by considering the petitioner's representation dated 24.07.2015.
2.The case of the petitioner is that there was a housing layout formed in Re-Survey No.277 in the year 1986 to an extent of 4.59.5 Hectare in Periasemur village, Erode Taluk, Erode District (land in question). The plan 2/11 https://www.mhc.tn.gov.in/judis W.P.No.1553 of 2016 & WMP.No.9183 of 2017 was approved on 17.09.1986 by the 3rd respondent. The said approval land had been granted nearly about more than 100 plots and as per the said approval, a specific place had been earmarked for children park.
3.The petitioner has purchased a plot in the year 1988 from the promoter and constructed the house and subsequently while being so, the place earmarked for children park as per the plan approval granted by the 3 rd respondent had been occupied, installed a Vinayagar Statue and constructed a small Vinayagar Temple illegally by a small group and thereafter the respondent did not take care about the children park. So, the temple authorities expand the temple and occupied the entire children park area and thereafter the temple incharge person created nuisance in the said locality as aged people and school going children were effected by the acts of the temple authorities. Thereby, the petitioner made a representation on 24.07.2015 for removal of the illegal encroachment and form the children park as per the approval. Till date, no order was passed regarding the representation. Hence, the Writ Petition is filed. 3/11 https://www.mhc.tn.gov.in/judis W.P.No.1553 of 2016 & WMP.No.9183 of 2017
4.Learned counsel appearing for the petitioner would submit that the place earmarked for children park cannot be utilized for other purposes and the petitioner made a representation for removal of temple as per the decision of Hon'ble Apex Court wherein it took a decision in Union of India Vs State of Gujarat and others. The issue arises before the Hon'ble Apex Court is whether the temple or statue can be installed on the National Highways and it took a serious view and issued a direction that State Governments and Union Territories shall not grant any permission for installation of any statue or construction of any structure in public roads, pavements, sideways and other public utility places. However, contrary to the decision, the local body allowed the temple to occupy the public area.
5.The submissions of learned counsel for the 2nd respondent are as follows:
(a) The land in question stood in the names of Kumarasamy gounder, Sengoda gounder and Palani gounder with patta No.708, was later sub-
divided into six parts, in Natham Settlement Scheme, such as S.F.Nos.689 to
693. The petitioner's prayer is with regard to S.F.No.689/3 classified as ryot 4/11 https://www.mhc.tn.gov.in/judis W.P.No.1553 of 2016 & WMP.No.9183 of 2017 manai with an extent of 0.06.94 hectare. A copy of layout produced by the petitioner reveals that the S.F.No.689/3 was marked as children's park in which one vinayakar temple is built.
(b) Whileso, the petitioner has sent a representation to 3 rd respondent on 24.07.2015 to evict the temple and to form a Children's park in the above disputed land. But, the original layout approval order or the original layout sketch could not be traced so far and it is also not handed over to local body and still being a ryot manai, the Revenue Authority has no power to enter into a riot land and carryout eviction as sought by the Writ Petitioner.
(c) The Petitioner's husband Paramasivam was enquired on 05.04.2019, in which, he insisted to remove the temple by producing an unregistered Settlement deed, xerox copy of certificate of the Assistant Divisional Engineer and a layout sketch. The 3rd respondent was also enquired on 23.04.2019, in which, he stated that no resolution was passed during 1988 in periyasemur Town Panchayat classifying the land as children's park. The Assistant Divisional Engineer, High ways was also 5/11 https://www.mhc.tn.gov.in/judis W.P.No.1553 of 2016 & WMP.No.9183 of 2017 enquired, in which, he stated that they could not trace out the file No.Na.Ka.No.(177)1817/,tm-ehs;: 17.09.1986.
6.The submissions of learned counsel for the 3rd respondent are as follows:
(a) the petitioner is the wife of one Paramasivam, son of Kuppusamy Mudaliyar and the petitioner's husband has already filed a suit in O.S.No.582 of 2012 on the file of I Addl. District Munsif, Erode on 15.12.2012 for permanent injunction restraining defendants 2 to 6, who are the poosaris of the said temple, not to operate electric drums, loud speakers and thereby not to cause any disturbance to the enjoyment of his properties.
The said suit was dismissed for default on 03.10.2013. Suppressing the aforesaid things, the petitioner, none other than the wife of one Paramasivam, has filed this Writ Petition which is abuse of process of law.
(b) He further agrues that R3 has not approved the layout in S.F.No.277 of Periyasemur Village to an extent of 4.59.5 hectares and has 6/11 https://www.mhc.tn.gov.in/judis W.P.No.1553 of 2016 & WMP.No.9183 of 2017 not produced the original plan approved by the Deputy Director of Town and Country Planning. The entire villagers of Kaveri Nagar, Veerappanchatram, Erode have contributed and constructed a temple in a vacant site in the name of “Arultharum Karpaga Vinayagar Aalayam” and also the Kumbabishekam was also conducted on 03.02.1993. Therefore, the petitioner and her husband having allowed the entire villagers for construction of temple, filed the suit for bare injunction and allowed the same to be dismissed for default, cannot go beyond the consent given by them and there was no approval made by this respondent for Children's park. Hence, the petitioner alone forged the plan said to be approved by this respondent and there is no valid ground for considering such objection made by the petitioner.
7.Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondents.
8.The fact of the present case is nothing in dispute. Admittedly, the petitioner is a vigilant and had purchased a property in the year 1988 which 7/11 https://www.mhc.tn.gov.in/judis W.P.No.1553 of 2016 & WMP.No.9183 of 2017 was approved in the year 1986. Her grievance is that the disputed Vinayagar Temple is situated in the children park is contrary to the decision of the Apex Court and also the G.O. issued by the State Government.
9.However, on perusal of the counter affidavit filed by the official respondents, the entire S.F.No.277 was sub-divided as S.F.Nos.689, 690, 691, 692 and 693. During the Nattam Survey Settlement Scheme, the said land is classified as S.F.No.689/3, in which the Vinayagar temple is constructed and Sy.No.689/3 is classified as ryot manai, “Natham Niruthappattathu” and there is no record to sue that the land is allotted for public purpose as children park and no approved layout was produced before this Court and no Gift Deed was executed in favour of the local body. In the absence of the approval alone and gift deed, this Court cannot issue a direction to the local body to maintain the public place as per the original layout.
10.Further, it revealed that already the petitioner's husband Paramasivam has filed a suit in O.S.No.582/2012 as against the Vinayagar 8/11 https://www.mhc.tn.gov.in/judis W.P.No.1553 of 2016 & WMP.No.9183 of 2017 Temple sought the relief of permanent injunction restraining the defendant Nos.2 to 6 therein, not to operate electric drums, loudspeakers and thereby not to cause any disturbance to the enjoyment of his properties. The said suit was not prosecuted by the petitioner's husband and the said suit was dismissed for default on 03.10.2013. Hence, admitting the position and no proof was placed before this Court to substantiate that particular place is allotted for public purpose i.e. children park, this Court cannot issue any affirmative direction as sought for in this Writ Petition.
11.However, this Court inclined to issue a direction to the 2 nd and 6th respondents to instruct the temple authorities not to make any noise pollution by fixing the loud speakers and create traffic congestion within the locality.
12.With the above direction, this Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
kbs 17.06.2022
Index: Yes/ No
9/11
https://www.mhc.tn.gov.in/judis
W.P.No.1553 of 2016 &
WMP.No.9183 of 2017
Internet: Yes/ No
Speaking Order/ Non Speaking Order
To
1.The Home Secretary,
Tamil Nadu Government, Secretariat,
Revenue Department, Fort St.George, Chennai – 600 009.
2.The District Collector, O/o.District Collectorate, Erode District.
3.The Assistant Commissioner, Veerappan Chatram (Zone) Corporation Office, Veerappan Chatram, Erode – 4.
4.The District Revenue Officer, Perunthurai Road, Erode – 638 011.
5.The Revenue Divisional Officer, Division Office, Prab Road, Erode – 1.
6.The Tahsildar, Tahsildar Office, Erode – 1.
10/11 https://www.mhc.tn.gov.in/judis W.P.No.1553 of 2016 & WMP.No.9183 of 2017 M.DHANDAPANI, J.
kbs W.P.No.1553 of 2016 & WMP.No.9183 of 2017 17.06.2022 11/11 https://www.mhc.tn.gov.in/judis