Arulmighu Vinayagar Kovil v. State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 08.02.2012CORAMTHE HONOURABLE MR. JUSTICE M. VENUGOPALS.A.No.684 of 1999Arulmighu Vinayagar Kovil,rep by its TrusteeK.Sundar Raj ... Plaintiff/Appellant/Appellant(substituting the name of presenttrustee as K.Sundar Raj vide orderdated 29.07.2003 made inC.M.P.No.397 of 2002)Vs.1. The Sub Divisional Engineer, Highways & Rural Works Coimbatore.2. State of Tamilnadu, rep by its Collector, Coimbatore. ... Defendants/Respondents/RespondentsThe present Second Appeal is filed against the Judgment andDecree of the Learned II Additional District Judge, Coimbatore dated07.12.1998 made in A.S.No.101 of 1998 by reversing the Judgment andDecree dated 17.12.1997 made in O.S.No.2152 of 1993 on the file ofthe Learned II Additional District Munsif, Coimbatore.For Appellant : Mr.S.Mukunth for M/s.Sarvabhauman AssociatesFor Respondents 1 & 2 : Mrs.Saraswathi Shivaraman Iyer, Govt. AdvocateJ U D G M E N TThe Appellant/Plaintiff (Temple) has filed the present SecondAppeal as against the Judgment and Decree dated 07.12.1998 passed bythe Learned II Additional District Judge, Coimbatore in A.S.No.101 of1998 in reversing the Judgment and Decree dated 17.12.1997 inO.S.No.2152 of 1993 passed by the Learned II Additional DistrictMunsif, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/

2.The 1st Appellate Court, while passing the Judgment inA.S.No.101 of 1998 on 07.12.1998 in the Appeal has inter aliaobserved that the Appellant/Plaintiff has not proved that it hasacquired adverse possession in respect of the suit property andfurther, opined that in the suit property though there is a temple,the same is to be called as in Siruvani Highways and there is nodocument to describe as temple property and moreover, the trial Courthas no territorial jurisdiction as per Section 14 of The Tamil NaduLand Encroachment Act, 1905 to hear the suit and resultantly, setaside the portion of the Judgment and Decree of the trial Court anddismissed the Appeal without costs. Finally, the suit in O.S.No.2152of 1993 on the file of the trial Court has been dismissed in toto.3.Before the trial Court, in the main suit, 1 to 2 issues havebeen framed for determination. On behalf of the Appellant/Plaintiff,witnesses P.W.1 and P.W.2 have been examined and Exs.A.1 to A.17 havebeen marked. On the side of the Respondents/Defendants, witness D.W.1has been examined and Exs.B1 and B.2 have been marked. Also, Exs.C.1and C.2 have been marked on the side of the Court.4.The trial Court on an analysis of the oral and documentaryevidence available on record has come to a consequent conclusion thatthe Appellant/ Plaintiff is not entitled to get the relief ofdeclaration in respect of the suit property and also theAppellant/Plaintiff has not established the relief of adversepossession, but granted only the relief of permanent injunction anddecreed the suit, without costs to that effect.5.At the time of Admission of the Second Appeal, this Court hasframed the following substantial questions of Law:1.Whether the lower Appellate Court is right in lawin setting aside the decree for injunction granted bythe trial Court in favour of the Appellant which hasnot been challenged by the Respondents by way ofappeal?2.Whether the lower Appellate Court is correct in lawin holding that the Land Encroachment Act would applyto the temple property overlooking the savingprovision of Section 2 of the Act? 6.The Contentions, Discussions and Findings on substantialquestions of law 1 and 2: According to the Learned Counsel for theAppellant/Plaintiff, the 1st Appellate Court has committed an error inreversing the Judgment and Decree of the trial Court in the mainsuit, which has not been challenged by the Respondents/Defendants andthis erroneous approach has resulted in miscarriage of justice.7.The Learned Counsel for the Appellant/Plaintiff (Temple)submits that the 1st Appellate Court has gone wrong in setting aside https://hcservices.ecourts.gov.in/hcservices/ the decree for injunction granted by the trial Court in favour of theAppellant/Plaintiff, which has not been challenged by the Respondentsby means of a separate Appeal.8.The stand of the Appellant/Plaintiff is that since the suitproperty is situated in a temple site, the same will attract thesaving provision of Section 2 of the Tamil Nadu Land EncroachmentAct, 1905 and therefore, the Respondents have no jurisdiction toinitiate action under the Tamil Nadu Land Encroachment Act, 1905.9.Yet another submission of the Learned Counsel for theAppellant/ Plaintiff is that the suit temple is in existence fromtime immemorial and in any event from the year 1910 onwards andtherefore, the Appellant/Plaintiff has perfected title to the suitproperty by means of long, continuous and open enjoyment of the sitefor well over 100 years. 10.The Learned Counsel for the Appellant/Plaintiff contendsstrenuously that no 'B' memos have been issued to theAppellant/Plaintiff (Temple) treating it as an encroacher and as amatter of fact, the trial Court has specifically found that thetemple is situated in a poromboke land, which is worshiped by thegeneral public for several years without any hindrance. Drawing theattention of this Court to the Commissioner's Report and Plan viz.,Exs.C.1 and C.2, the Learned Counsel for the Appellant/Plaintiffsubmits that suit temple neither blocks the view nor obstruct theflow of traffic and in fact, it is situated in a poromboke land, awayfrom the road.11.The main thrust of the argument advanced by the LearnedCounsel for the Appellant/Plaintiff is that the ambit of Section 2 ofthe Tamil Nadu Land Encroachment Act, 1905 has been wrongly construedbecause of the fact that the suit property is a temple in existencefor well over 100 years and indeed, the temple attracts the exemptionprovision of the said Section 2 of the Act.12.The next limb of argument advanced by the Learned Counsel forthe Appellant/Plaintiff is that the 1st Appellate Court has failed toappreciate that Section 14 of the Tamil Nadu Land Encroachment Act,1905 makes it clear that anything contained in the Act shall be heldto prevent the aggrieved persons to approach the Civil Court forredress within a period of six months. Lastly, it is the submissionof the Learned Counsel for the Appellant/Plaintiff that the 1stAppellate Court has not taken note the real facts and circumstancesof the case in a proper perspective and therefore, the Judgment ofthe 1st Appellate Court in Appeal in A.S.No.101 of 1998 needs to beset aside, in the interest of justice.13.Conversely, it is the submission of the Learned GovernmentAdvocate (CS) that both the Courts below have come to a clear https://hcservices.ecourts.gov.in/hcservices/ conclusion that the Appellant/Plaintiff is not entitled to claim therelief of adverse possession and further, the 1st Appellate Court hasclearly held that as per Section 14 of the Tamil Nadu LandEncroachment Act, 1905, a Civil Court has no jurisdiction to hear thecase and accordingly, dismissed the Appeal by setting aside theportion of the relief of injunction granted by the trial Court andconsequently, dismissed the O.S.No.2152 of 1993 on the file of thetrial Court in entirety. As such, the findings of fact arrived at bythe 1st Appellate Court need not be upset by this Court sitting inSecond Appeal, at this distant point of time.14.The Appellant/Plaintiff in the plaint before the trial Courthas averred that the suit temple is situated in S.No.230/1,Komarapalayam, Coimbatore Taluk and the same is in the State PublicHighway known as Perur Road or Siruvani Road. The temple is inexistence for well over 100 years from time immemorial. In theGovernment Plan of the year 1910, existence of the temple has beentaken note of and it ought to have been in existence even before thatperiod.15.The Appellant/Plaintiff has also mentioned in the plaint thatthe suit temple is worshiped by the general public in and around thearea as well as by the persons who pass that road to Perur by foot aswell as vehicles. The Appellant/Plaintiff (Temple) is in existencefor well over 100 years (far beyond the statutory period of 30 years)in its own right, openly, peacefully without interruption and assuch, the Appellant/Plaintiff has prescribed title to the areaoccupied by it.16.The 1st Respondent/1st Defendant has caused a notice dated01.10.1993 under the Tamil Nadu Land Encroachment Act, 1905 to theAppellant/Plaintiff, who has received it on 04.10.1993. In the saidshow cause notice, the Appellant/Plaintiff has been given sevendays time to remove the occupation of the plaint scheduled property.The plaint scheduled property being a temple site, will attractSection 2 of the Tamil Nadu Land Encroachment Act, 1905. TheRespondents/Defendants have acted without jurisdiction in issuing theimpugned notice dated 01.10.1993 to the Appellant/Plaintiff. TheRespondents/Defendants have no right to invoke the ingredients ofSections 6 and 7 of the Tamil Nadu Land Encroachment Act, 1905 inrespect of the Appellant/Plaintiff's lawful occupation of theschedule mentioned property without being objected to by anyauthority for well over 100 years. Hence, the Appellant/Plaintiff hasfiled a suit praying for the relief of declaration that it hasperfected title to the plaint schedule property by means of adversepossession and has also prayed for the relief of injunction and forcosts of the suit. https://hcservices.ecourts.gov.in/hcservices/

17.In the written statement, the Respondents/Defendants havepleaded that the Appellant/Plaintiff (Temple) filed a writ petitionin W.P.No.10737 of 1983 to justify the encroachment and an order hasalready been passed by this Court on 26.11.1991 and that theAppellant/Plaintiff has thought fit to file the present suit andalso, a petition for injunction. Furthermore, in the order of thisCourt in the Writ Petition, liberty has been granted to the effectthat it is open to the Government and the Highways Department toproceed to remove the encroachment by issuing notice as per Sections6 and 7 of the Tamil Nadu Land Encroachment Act, 1905. Therefore, anotice as per Sections 6 and 7 of the Act has been rightly issued.18.The suit filed by the Appellant/Plaintiff as an encroacheragainst the true owner of the property itself is not maintainable inlaw. The Appellant/ Plaintiff never perfected its title by adversepossession. The Appellant/ Plaintiff has no locus standi to sue or toseek any of the reliefs mentioned in the plaint. The suit, as framed,is not maintainable. There is no cause of action for the suit. Alsothat the suit filed by the Appellant/Plaintiff before the trial Courtwithout issuing notice as per Section 80 of the Civil Procedure Code,is not sustainable.19.The trial Court in its Judgment in the main suit hascategorically held that though P.W.1 in his evidence has deposed thatthe suit temple has been in existence for a number of years and thatwithout any hindrance, the same has been enjoyed etc., it is to bepointed out that the trial Court has come to the conclusion that theplace in which the suit temple has been situated is a poramboke landand in the said poramboke land, lawful roads are to be laid and thatthe Appellant/Plaintiff has not acquired the relief of adversepossession though the temple has been in existence for a number ofyears. The trial Court has only granted the relief of injunctionsince the existence of the Appellant/Plaintiff (Temple) will not be ahindrance to the public and that has been established through theevidence of P.W.1 and accordingly, granted the relief of permanentinjunction and dismissed the declaratory relief in respect of thesuit property claimed by the temple.20.The 1st Appellate Court in its Judgment in the Appeal inparagraph-9 has opined that the trial Court while dismissing thedeclaratory relief of the Appellant/Plaintiff in respect of the suitproperty, should not have granted the relief of injunction as aconsequent relief and further, the Appellant/Plaintiff has encroachedthe Highways and has constructed the temple and therefore, it canonly be construed as an encroachment and it cannot be called as atemple land and held that as per Section 14 of the Tamil Nadu LandEncroachment Act, 1905, the trial Court has no jurisdiction toentertain the suit and dismissed the Appeal by setting aside oneportion of the Judgment and Decree of the trial Court and dismissedthe O.S.No.2152 of 1993 in entirety. https://hcservices.ecourts.gov.in/hcservices/

21.The 1st Appellate Court has also observed in its Judgment inthe Appeal in paragraph-11 that except the 'B' memos, no otherdocument has been produced on the side of the Appellant/Plaintiff andtherefore, it has come to the conclusion that the Appellant/Plaintiff(Temple) has not acquired any right of adverse possession in respectof the suit property and has not granted the declaratory relief infavour of the Appellant/Plaintiff.22.In this connection, it is useful for this Court to make areference to Section 2 of the Tamil Nadu Land Encroachment Act, 190-5, which enjoins as follows:"2.Right of property in public roads, etc. waters andlands – (1)All public roads, streets, lanes and paths, thebridges, ditches, dikes and fences, on or beside the same,the bed of the sea and of harbours and creeks below highwater mark and of rivers, streams, nalas, lakes and tanksand all backwaters, canals and water-courses and allstanding and flowing water, and all lands, whereversituated, save in so far as the sane are the property -(a)of any zamindar, poligar, mittadar, jagirdar,shrotriemdar or inamdar or any person aiming through orholding under any of them or(b)of any person paying kist, kattubadi, jodi, poruppuor quit rent to any of the aforesaid persons or(c)of any person holding under ryotwari tenure,including that of a janmi in the Gudalur taluk of theNilgiri District and in the transferred territory or in anyway subject to the payment of land-revenue direct toGovernment, or (d)of any other registered holder of land inproprietary right, or(e)of any other person holding land under grant fromthe Government otherwise than by way of licence,and, as to lands, save also in so far as they areTemple site or owned as house-site or backyard, are and arehereby declared to be the property of Government except asmay be otherwise provided by any law for the time being inforce subject always to all rights of way and other publicrights and to the natural and easement right of other land-owners, and to all customary rights legally subsisting.(2)All public roads and streets, vested in any localauthority shall, for the purposes of this Act, be deemed tobe the property of Government.Explanation – In this Section "high water mark" meansthe highest point reached by ordinary spring-tides at anyseason of the year."23.Section 6 of the Act speaks of liability of the personunauthorisedly occupying land to summary eviction, forfeiture of https://hcservices.ecourts.gov.in/hcservices/ crops etc. Section 7 of the Act refers to issuance of prior notice tothe person in occupation. As per Section 7 of the Act, beforeinitiating proceedings as per Section 6, the Collector or Tahsildaror Deputy Tahsildar or Revenue Inspector or any authorised officer orany other officer specified by the State Government in this behalf(not being an authorised officer) will have to serve notice and thesaid notice will have to be served as per Section 25 of the TamilNadu Revenue Recovery Act, 1864.24.Any action without issuance of notice will vitiate the entireproceedings. Ordinarily, mere payment of penal assessment under theAct cannot clothe an occupier with a right to challenge notice issuedunder Section 7. If persons admittedly in possession as trespassersand not under any other independent title or right cannot contendthat Government has no power to evict them under the Act as perdecision Bakka Nagaiah and others V. Firka Revenue Inspector 1,Tondiarpet Taluk Office and others in 1987 Writ L.R. 362. No wonder,the revenue authorities are required to follow the legal requirementsof Sections 6 and 7 of the Tamil Nadu Land Encroachment Act, 1905.Section 14 of the Tamil Nadu Land Encroachment Act, 1905 enjoins barof jurisdiction of Courts.25.As far as the present case is concerned, it is not in disputethat the Appellant/Plaintiff has already approached this Court inW.P.No.10737 of 1983 and as per order dated 26.11.1991, liberty hasbeen granted to the effect that it is open to the Government and theHighways Department to proceed to remove the encroachment byissuing notice as per Sections 6 and 7 of the Tamil Nadu LandEncroachment Act, 1905 only upon directions issued in the WritPetition as mentioned before, a notice as per Sections 6 and 7 of theAct has been issued to the Appellant/Plaintiff. For the notice issuedunder Sections 6 and 7 of the Act by the Respondents/Defendants, theAppellant/ Plaintiff has not issued a reply. Before issuing a reply,the Appellant/Plaintiff has approached the trial Court praying for arelief of declaration in respect of the suit property and also forconsequential injunction restraining the Respondents/Defendants,their agents and men from taking action under Section 6 of the TamilNadu Land Encroachment Act or otherwise interfere with the peacefulpossession and enjoyment of the Schedule mentioned property by theAppellant/Plaintiff.26.The specific case of the Appellant/Plaintiff is that theAppellant/ Plaintiff (Temple) is entitled to avail the ingredients ofSection 2 of the Tamil Nadu Land Encroachment Act, 1905 in and bywhich the temples are exempted from the purview of the Tamil NaduLand Encroachment Act, 1905.27.Admittedly, the Appellant/Plaintiff (Temple) has been inexistence for well over 100 years. As per Section 14 of the Act, thejurisdiction of the Civil Court is barred in regard to any order https://hcservices.ecourts.gov.in/hcservices/ passed or proceeding taken by any officer of authority or the StateGovernment under the Act, which shall be called in question in anyCourt, in any suit in application and further, no injunction shall begranted by any Court in respect of any action taken or to be taken bysuch officer or authority or the State Government in pursuance of anypowers. 28.The bar for filing the suit before a Civil Court is explicitand the tenor of the words employed in Section 14 of the Actenvisages that it admits of no exemption. But this legal barcontemplated as per Section 14 of the Tamil Nadu Land EncroachmentAct, 1905 has not been looked into by the trial Court. The saidingredients of Section 14 of the Act have been adverted to by the 1stAppellate Court in its Judgment in Appeal and it has accepted theplea of the Respondents/Defendants that the suit filed by theAppellant/Plaintiff is not to be heard by the trial Court andfinally, dismissed the suit, while allowing the Appeal in portion anddismissing the Appeal also. It is to be borne in mind, theAppellant/Plaintiff has a right to furnish reply to the show causenotice issued by the Respondents/Defendants dated 01.10.1993. 29.In the instant case on hand, according to the Learned Counselfor the Appellant/Plaintiff, the temple has issued Ex.A.6 lawyer'sreply dated 07.10.1993 addressed to the 1st Respondent/1st Defendantwherein it is specifically mentioned that the public highwaysmeasuring over 60 feet is not at all affected in any manner by theexistence of the temple, which is situated at the edge of the roadand that the Government records recognised the existence of theVinayagar Temple in the sport in the records of 1910 and also, thetemple as a place of worship has been in existence even prior to thecommencement of twentieth century. From 1941 onwards, Sri NajaihaBramahnanda Madam has been continuously managing the temple followingall religious injunctions connected with the performance of dailypoojas and rituals in the said temple. The Respondents/ Defendantshave not passed any orders considering the reply of the Appellant/Plaintiff (Temple) dated 07.10.1993 issued through its lawyer. Beforethe authorities could pass orders on the reply dated 07.10.1993submitted by the Appellant/Plaintiff, the Appellant/Plaintiff(Temple) has chosen to institute the present suit in O.S.No.2152 of1993 before the trial Court on 25.10.1993. This Court opines thatwithout any orders being passed by the Respondents/ Defendants inregard to the show cause notice issued as per Sections 6 and 7 of theAct dated 01.10.1993, based on the Appellant/Plaintiff's reply dated07.10.1993 the suit filed by the Appellant/Plaintiff before thisCourt is a premature and an otiose one. Further, the said suit isclearly hit by Section 14 of the Tamil Nadu Land Encroachment Act,1905. Since, the suit filed by the Appellant/ Plaintiff is notmaintainable as per Section 14 of the Act, this Court, on that simpleground alone dismisses the Appeal and leaves the substantialquestions of law 1 and 2 unanswered. https://hcservices.ecourts.gov.in/hcservices/

30.In the result, even though the suit filed by theAppellant/Plaintiff is not maintainable, this Court on the basis ofEquity, Fair Play, Good Conscience and even as a matter of prudence,directs the Respondents/Defendants to pass appropriate orders basedon the reply of the Appellant/Plaintiff dated 07.10.1993 to the showcause notice issued on 01.10.1993, within a period of forty five daysfrom the date of receipt of a copy of the Judgment and theauthorities, before passing the necessary orders are to comply withrequirements of principle of natural justice by affording adequateopportunities to the Appellant/Plaintiff. Likewise, theAppellant/Plaintiff (Temple) is also permitted to raise all otherFactual and Legal Issues before the Respondents/Defendants and it isopen to the Respondents/Defendants to consider them in adispassionate manner uninfluenced by the observations made by thisCourt in this Judgment. Till necessary orders are passed by theRespondents/Defendants in regard to the eviction notice dated01.10.1993 issued by them, the Respondents/Defendants shall notdisturb the possession of the Appellant/Plaintiff (Temple), which hasbeen in existence for well over 100 years. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.vaTo1. The II Additional District Judge, Coimbatore.2. The II Additional District Munsif, Coimbatore.3. The Section Officer, V.R.Section, High Court, Madras.+ 1 CC to the Government Pleader SR NO 8545+ 1 CC To M/S.Sarvabhauman Associates Advocate SR NO.8773S.A.No.684 of 1999UG(CO)ABH/28.05.2012