Judgment · High Court · 2012

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 02.07.2012CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.6278 of 2008andM.P.No.1 of 2008 Sri Adikesava Perumal Peyalwar Devasthanamrep by N C Sridhar, Managing Trustee, Board of Trust, Mylapore, Chennai-600 004... Petitioner Vs.

The Corporation of Chennai, rep by its Commissioner, Ribbon Buildings, Chennai-600 003.

The Assistant Commissioner, Ward 147, Chennai City Municipal Corporation, Ribbon Buildings, Chennai-600 003.

The Junior Engineer, Ward 147, Zone 10, Chennai City Municipal Corporation, Mylapore, Chennai-600 004... Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamusto forbear the respondents, their men, servants and agents from construction latrines and bathrooms on the pavements on the 4 sides of Chithrai Thirukulam (Tank) in Mylapore belong to the petitioner temple. For Petitioner : Mr.D.RajagopalFor Respondents : Mr.V.BharathidasanORDERThe petitioner is the Adikesava Perumal Peyalwar Devasthanamrepresented by its Managing Trustee. In this writ petition, they have sought for a direction to the respondent Corporation of Chennai to forbear from constructing latrines and bathrooms on the pavements on the four sides of the Chithirai Thirukulam (Tank) in Mylapore belonging to the petitioner temple. https://hcservices.ecourts.gov.in/hcservices/

2. The writ petition was admitted on 12.03.2008. Pending the writ petition, this court had granted an interim injunction for alimited period. Subsequently, the interim order was extended for afurther period till 16.06.2008. On notice, after the orders were about to be pronounced, in the last minute, a counter affidavit, dated 2.7.2012 was filed by the first respondent. 3. It is seen from the records that the petitioner temple is the Vaishnavite temple and it governed by the scheme decree framed by this court. Temple has got a Tank (known as Chithiraikulam)adjoining to the temple. It is used for daily religious purpose of the temple for bringing water for Abhishegam. When the Corporationof Chennai, the first respondent, found that there are vegetable vendors abutting the temple tank belonging to the KapaleeswararTemple (Saivaite Temple), it had attempted to relocate them elsewhere. This was on the ground that the left over vegetables and perished vegetables are throwing in the temple tank and it would get polluted besides causing traffic bottleneck in the South MadaStreet. Therefore, they tried to relocate some of the vegetable vendors to do their business adjacent to the Chithiraikulambelonging to the petitioner temple. At that time, the petitioner temple filed a writ petition before this court being W.P.No.15354of 2007 seeking suitable directions to take an appropriate action in the light of the proceedings issued by the Joint Commissioner ofHR&CE, dated 26.02.2007. The temple had erected parapet wall in the four sides of the tank and it is maintained by the temple. It is necessary to keep the pavements always clean so that the water in the tank will not be polluted by the users of pavements. It is the duty of the Corporation of Chennai to keep the pavements clean as the maintenance of the same vest on them in terms of Section 203. But notwithstanding the obligation imposed on them to keep the pavements clean and also to maintain the purity of the temple, the respondent Corporation wanted to construct latrines and bathroom son the four sides of the Chithiraikulam on the pavements adjoining the temple tank. On 19.02.2008, the third respondent had visited the tank and attempted to put up latrines and bathrooms and started digging the floors. The temple authority had objected to the same and also had issued legal notice dated 20.2.2008.

Though under Section 184 of the Chennai City MunicipalCorporation Act, it is the duty of the Corporation to provide and maintain in proper and convenient places a sufficient number of public latrines and cause the same to be kept clean and in proper order, it does not give them right to encroach the pavements thattoo adjoining the temple tank which has to be kept clean for all purposes. Under Section 291, the corporation council shall also set apart places for use of public for bathing purpose and washing animals. Under Section 292, the Commissioner shall construct or provide and maintain public bathing houses and public wash housesand charge rents and fees. It does not automatically mean that it should be done only on the pavements abutting the temple tank which will be invariably polluted by the users. Under Section 77 of the https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu Hindu Religious and Charitable Endowment Act, the grant of licence in respect of the properties adjoining the temple tank is prohibited. Therefore, at no circumstances, the Corporation can use the pavement adjacent to the temple tank for construction of latrines and bathrooms.

In the counter affidavit, it is admitted that the Corporation had allowed 67 vegetable vendors to occupy the roadside footpath as per the direction issued. At the junction of Kapaleeswarar temple South Mada street and East Mada street, thereis a vacant road side land belonging to the corporation adjacent to the TNEB transformer and pillar box and it is in the north side of the Chitiraikulam tank compound. The above land is misused by antisocial elements and the public are using it as urinals. Toavoid this nuisance, the corporation proposed to construct toilet blocks with urinals for the public usage. This is very much useful to public, vegetable vendors and pilgrimage of the temple especially during festival times.

The affidavit filed by the Corporation of Chennai is strange. There is no positive direction of re-locating the vegetable vendors in South Mada Street to be located at Chithiraikulam. Some vegetable vendors who were relocated are dumping the waste vegetables including perished vegetables into the tank. The corporation has not considered the temple's request to remove the vegetable vendors from the said place. The corporation cannot insist upon to occupy the pavements which is only meant for road users and not for any hawking purposes. Even assuming that vendors have come and occupy the places, that cannot be a ground for construct toilet adjoining the tank. If the corporation is so interested in the welfare of the vendors, they should acquire the land or building and construct the market with proper toilet facilities. They cannot use the street margin and commit nuisance both to the temple as well as the worshippers who are coming to the temple. This court do not think that the corporation has acted bonafide in conceiving the plan to construct the toilet complex adjacent to the temple tank. The temple is well within its right to protect the sanctity of the temple tank by filing the writ petition. The reasons given by the corporation are contrary to the provisions of the City Municipal Corporation Act. The corporation cannot, in the guise of providing the facility to one section, offend the sentiment of the other section including creating nuisance by constructing toilet complex in the said area. https://hcservices.ecourts.gov.in/hcservices/

In the light of the above, the writ petition will stand allowed. The respondents Corporation are hereby prohibited from using the four sides of the temple tank called Chithirai Thirukulamfor construction of any toilet or washing houses as well as putting permanent encroachment in the pavements of the temple tank. Nocosts. Consequently connected miscellaneous petitions stand closed. Sd/-Asst. Registrar[Records]./true copy/Sub Asst. Registrar.vvkTo1.The Commissioner, The Corporation of Chennai, Ribbon Buildings, Chennai-600 003.2.The Assistant Commissioner, Ward 147, Chennai City Municipal Corporation, Ribbon Buildings, Chennai-600 003.3.The Junior Engineer, Ward 147, Zone 10, Chennai City Municipal Corporation, Mylapore, Chennai-600 004.W.P.No.6278 of 2008[co]gp/23.7.