Madrasdated High Court · 2025

W.P.No.13831 of 2022Mettur Electricity Distribution CircleTANGEDCOMettur 636 402Salem District7.Arulmigu Sri Varasithi VinayagarSri Sorna Ellai Kaliyamman TempleThookkanampatti, MetturRep. by its President R.KrishnanS/o.RamasamyMettur, Salem District8.The CommissionerHindu Religious and Charitable Endowments DepartmentNo.119, Uthamar Gandhi SalaiNungambakkam, Chennai 600 0349.The Joint CommissionerHindu Religious and Charitable Endowments DepartmentKottai Mariamman Temple ComplexSalem 636 00110.The Assistant CommissionerHindu Religious and Charitable Endowments DepartmentKottai Mariamman Temple ComplexSalem 636 001(RR8 to 10 suo motu impleaded vide order dt.25.06.2025) .. RespondentsWrit Petition filed under Article 226 of the Constitution of India praying for issue of a writ of mandamus directing the respondents 1 to 6 to demolish and remove the unauthorised construction made by the 7th respondent on the public road in the name of expansion of temple called Arulmigu Sri Varasithi Vinayagar, Sri Sorna Ellai Kaliyamman Temple situated in S.No.10/1 at Block No.5, Ward B, Thookkanampatti 2/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022Village, Mettur Taluk, Salem District based on the representation made by the petitioner dated 20.05.2022 and retain the same in its original position for public usage.For petitioner: Mr.V.ElangovanFor RR 1, 2 & 4: Mr.T.K.Saravanan Addl. Govt. PleaderFor R3: Mr.P.Srinivas Standing CounselFor RR 5 & 6For R7: Mr.L.Jai Venkatesh Standing Counsel: No appearanceFor RR 8 to 10: Mr.K.Karthikeyan Govt. AdvocateO R D E R(made by M.SUNDAR, J.)Subject matter of captioned main 'writ petition' [hereinafter 'WP' for the sake of brevity] is 'land comprised in Town Survey No.10/1 in Block No.5, Ward B, Thookkanampatti Village, Mettur Taluk, Salem District' [hereinafter 'said land' for the sake of convenience and clarity]. Alleged encroachment qua said land by extending existing 'Sri Varasithi 3/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022Vinayagar Temple and Sri Sorna Ellai Kaliyamman Temple' [hereinafter collectively 'said temples' for the sake of convenience and clarity] is the central issue in the captioned main WP.2. Mr.V.Elangovan, learned counsel for writ petitioner, Mr.T.K.Saravanan, learned Additional Government Pleader for RR 1, 2 and 4, Mr.P.Srinivas, learned Standing Counsel for R3, Mr.L.Jai Venkatesh, learned Standing Counsel for TANGEDCO for RR 5 and 6, are before us. As regards R7, the cause list shows that R7 has been served, name and full/complete address of R7 as in the short and long cause titles, have been shown in the cause list but none appears. We are informed by the Registry that R7 has not chosen to enter appearance through any counsel.3. In the aforesaid setting, with the consent of all the aforementioned learned counsel, main WP was taken up and heard out.4. At the outset, it is necessary to record that R7 has filed a suit. R7 has filed a suit being O.S.No.91 of 2022 on the file of District Munsif Court, Mettur and the case status as available in the official e-Court website is as follows :4/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 20225/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 20226/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 20225. In the above suit, besides D1, who is styled as President, 7/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 20225 other individuals who have been described as Vice President, Secretary, Joint Secretary, Treasurer and Sub Treasurer respectively are shown to be representing said temples.6. The case file brings to light that the abovereferred suit is one for permanent and mandatory injunctions qua said land and we are informed that the mandatory injunction limb is with regard to removal of encroachment in said land.7. This Court is also informed that the aforereferred suit was originally filed in the Court of the Vacation Civil Judge, Salem, taken on file as O.S.No.271 of 2022, subsequently, transferred to District Munsif Court, Mettur and assigned the number O.S.No.91 of 2022.8. The most significant averment in the suit is contained in an affidavit dated 02.05.2022 filed in support of an interlocutory application for appointment of Advocate Commissioner and this averment says that said temples are situate in Government poramboke land. This averment is contained in paragraph 3 of the affidavit and the same reads as follows:'3. ... ... The suit temple situated in the Government 8/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022Poramboke land. ... ...'9. To be noted, the deponent of this affidavit is Mr.R.Krishnan, who has been arrayed as the person representing said temples. R7 in the cause title reads as follows :'7.Arulmigu Sri Varasithi Vinayagar Sri Sorna Ellai Kaliyamman Temple Thookkanampatti, Mettur Rep. by its President R.Krishnan S/o.Ramasamy Mettur, Salem District'10. We deem it appropriate to also record that the lone writ petitioner before us, is the sole defendant in the aforesaid suit.11. It is in the aforesaid backdrop that removal of unauthorised construction prayer has been made in captioned WP and this has impelled this Court to plough into the matter.12. This Court deems it appropriate to set out two obtaining legal positions. One pertains to 'The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu Act 22 of 1959)' [hereinafter 'TN HR & CE Act' for the sake of brevity] and the other 9/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022pertains to 'The Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act III of 1905)' [hereinafter 'said 1905 Act' for the sake of brevity]. 13. TN HR & CE Act kicked in (came into force) on and from 28.11.1958. To be noted, sub section (4) of section 92 insofar as it relates to consultative committees and sub committees thereof and section 116(2)(xxi) did not kick in on 28.11.1958 and these two provisions were to come into force on Government notifying the same.14. Prior to 28.11.1958, to be precise on 13.04.1959, the SoR (Statement of Objects and Reasons) qua TN HR & CE Act was published in the Fort St. George Gazette Extraordinary. A careful perusal of the SoR makes it clear that it was considered necessary to put in place a comprehensive Act which is applicable to all 'Hindu Public Religious institutions and endowments' except Incorporated and Unincorporated Devaswoms in Kanyakumari district and Shencottah taluk of Tirunelveli District. Suffice to say that the object of the TN HR & CE Act inter-alia is to make it applicable to all 'Hindu public religious institutions'. This part of the SoR has been codified vide sub section (3) of section 1 which makes it clear that TN HR & CE Act is applicable to all (a) Hindu public religious institutions, (b) endowments, (c) incorporated Devaswoms and (d) unincorporated Devaswoms. As regards these four categories, all four terms 10/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022have been defined. (a)religious institution, (b) endowment, (c) incorporated Devaswoms and (d) unincorporated Devaswoms are defined vide sub sections (18), (17), (12) and (23) respectively, all of section 6 of TN HR & CE Act. 15. The definition of 'religious institutions' vide Section 6(18) makes it clear that it includes five categories of institutions, namely (a) math, (b) temple, (c) specific endowment, (d) samadhi and (e) brindhavan. While three are defined, two are explained. Math, Temple and specific endowment are defined vide sub sections (13), (20) and (19) of section 6, samadhi and brindhavan are explained vide Explanation (1) and (2) respectively of section 6(18).16. Therefore, it is clear that 'temple' is a 'religious institution', both of which are defined terms. The definition of temple vide section 6(20) makes it clear that a place of public religious worship which is dedicated to or which is for the benefit of, or used as of right by the Hindu community or of any section thereof as a place of public religious worship, is a temple irrespective of designation by which it is known. 17. There is no disputation before this court that 'Sri Varasithi Vinayagar Temple and Sri Sorna Ellai Kaliyamman Temple in 11/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022Thookkanampatti village, Mettur Taluk, Salem District' which are collectively being referred to as 'said temples' are places of public religious worship inter-alia for the benefit of Hindu Community. Therefore, said temples snugly fit into the definition of 'temple' vide section 6(20). This in turn means that said temples are 'religious institutions' within the meaning of section 6(18). As already alluded to supra, TN HR & CE Act is applicable to all Hindu public religious institutions.18. The obtaining legal position of TN HR & CE Act applies to 'all' Hindu public religious institutions is buttressed by a careful perusal of Sections 3 and 4 of TN HR & CE Act. While section 3 deals with the power of the Government to extend TN HR & CE Act to charitable endowments, section 4 deals with the power of the Government to exempt any religious institution from the provisions of TN HR & CE Act or Rules thereunder. The above means that only with regard to charitable endowments, the Government has to extend all or any of the provisions of the Act and rules made thereunder if circumstances set out in section 3 comes into play. To be noted, 'charitable endowments' are different from 'temples' which are 'religious institutions'. As already alluded to supra, 'temple' is defined vide section 6(20) and 'religious institution' which is defined vide section 6(18) includes a temple but 'Charitable endowments' is 12/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022defined separately vide section 6(5) which talks about property given or endowed for the benefit of Hindu or Jain communities or any section thereof for the support or maintenance of rest houses, choultries, patasalas, etc., 19. The above obtaining legal position which is clear as daylight from the ecosystem of TN HR & CE Act means that TN HR & CE Act per se applies to all Hindu public religious institutions which includes temples and as regards, charitable endowments, only if it is extended by the Government by way of notification vide section 3. It is clear from the legal architecture of the statute that absent exemption under section 4 or declaration that a temple is a private temple, irrespective of whether a religious institution (temple) finds place in the list to be published by the Commissioner of TN HR & CE Department under section 46 or not, it is a public temple under the sweep of the statute. The reason is TN HR & CE Act provides for appointment of trustees and Fit person for religious institutions (temples) which do not find place in section 46 list also. This is clear from section 49 which provides for jurisdictional Assistant Commissioner appointing Fit persons to religious institutions which are not included in section 46 list. If a temple find place in the list published by the Commissioner under section 46, the Government, Commissioner, 13/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022Joint Commissioner / Deputy Commissioner are vested with powers to appoint Fit person/s pending constitution of Board of Trustees. If a temple does not find place in the list, the jurisdictional Assistant Commissioner will have power under section 49 to appoint Fit person. 20. The sum sequitur is, individuals cannot self style themselves as President, Secretary, Treasurer or Administrator of a temple by whatever name called de hors TN HR & CE Act unless there is exemption under section 4. Likewise, a Trust or any other entity cannot style itself to be in administration of a temple de hors TN HR & CE Act. If individuals have any hereditary right or other rights to be in management and administration of a temple, they have to resort to various provisions under Chapter V of TN HR & CE Act and obtain suitable orders from the quasi judicial authority. 21. Therefore, absent exemption under Section 4 or any decree from a Civil Court to the effect that a temple is a private temple, said TN HR & CE Act would apply. In this view of the matter, as there is no material before us to demonstrate that said temples are private temples, though there is an averment in the aforementioned support affidavit that said temples are private temples, we deem it appropriate to suo motu implead the following officials as RR8 to 10 respectively:14/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022(i) The CommissionerHindu Religious and Charitable Endowments DepartmentNo.119, Uthamar Gandhi SalaiNungambakkam, Chennai 600 034(ii)The Joint CommissionerHindu Religious and Charitable Endowments DepartmentKottai Mariamman Temple ComplexSalem 636 001(iii) The Assistant CommissionerHindu Religious and Charitable Endowments DepartmentKottai Mariamman Temple ComplexSalem 636 001Mr.K.Karthikeyan, learned Government Advocate, accepts notice on behalf of newly impleaded RR8 to 10 and also consents for having the main WP heard out.22. As regards the second obtaining legal position, it is regarding said 1905 Act. In this regard, before proceeding further, it is deemed appropriate to write that this Court, in C.Gopinathan case reported in 2025:MHC:1162 (order dated 29.04.2025 in W.P.Nos.8355 and 8357 of 2022 and W.M.P. Nos.8324 and 8237 of 2022 thereat), respectfully following Girnar principle, i.e., declaration of law made by a Constitution Bench of the Hon'ble Supreme Court in Girnar Traders (3) vs. State of Maharashtra reported in (2011) 3 SCC 1, held that said 15/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 20221905 Act is a self contained Code. Girnar principal is that if a statute provides for a complete machinery to deal with the purpose sought to be achieved by that law and its dependence on other legislations is either absent or minimal, such a statute is a self contained Code. 23. The ecosystem of said 1905 Act, i.e., the purpose sought to be achieved by said 1905 Act is to lay down procedure for eviction of encroachment of lands belonging to the Government. As regards said 1905 Act, inter alia, there is a provision to have the alleged encroacher show caused under Section 7 of said 1905 Act followed by an order under section 6 (considering the cause shown). The order under Section 6 is appealable. Section 10 is the appeal provision and inter-alia District Collector is the appellate authority and there is a provision for further revision to the Government under Section 10-A of said 1905 Act. Pending appeal / revision, there is a provision for making interim prayer vide Section 10-B of said 1905 Act. This order of Revisional Authority is obviously subject to judicial review. This is the legal architecture of the machinery put in place to deal with the purpose sought to be achieved by said 1905 Act. Such a three-tier machinery has been put in place to check unauthorised occupation of lands which are the properties of the Government (besides imposition of penal or prohibitory assessment or 16/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022charge), after giving adequate and ample opportunity to a person who is alleged to be in occupation of public roads, streets, lanes and paths, bridges, ditches, dikes and fences, rivers, streams, nalas, lakes, tanks and such other properties of Government. 24. The purpose sought to be achieved by said 1905 Act and the architecture of the machinery put in place to achieve the same when tested on the touchstone of Girnar principle leaves us with the view that said 1905 Act is a self contained Code which provides for complete machinery to deal with the purpose sought to be achieved with no dependence on other legislations or at the highest minimal dependence on other legislations. Suffice to say that said 1905 Act is clearly a self-contained Code.25. Besides said 1905 Act being a self-contained Code, Section 14 of said 1905 Act is of relevance and the same reads as follows:'14.Bar of jurisdiction of Courts.-- Notwithstanding anything contained in any law for the time being in force, no order passed or proceeding taken by any officer or authority or the State Government under this Act shall be called in question in any Court, in any suit or application and no injunction shall be granted by any Court in respect of any action taken or to be taken by such officer or authority or the State Government in pursuance of any power conferred by or under this Act.'17/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 202226. It is made clear from the aforementioned obtaining position of said 1905 Act that an action initiated under said 1905 Act cannot be assailed in a civil suit. In the case on hand, the aforesaid civil suit being O.S.No.91 of 2022 on the file of the District Munsif Court, Mettur, cannot be, therefore, made to cover any possible notice issued under said 1905 Act.27. As regards the obtaining legal position qua said TN HR & CE Act (about which there is detailed allusion supra), we take judicial notice of the factual position that said temples are public religious institutions said to be situate in Government land even according to the averment in the affidavit in I.A.No.2 of 2022 in O.S.No.271 of 2022 on the file of District Munsif Court, Mettur and are places of public religious worship for the benefit of Hindu community. To be noted, R7 though duly served and his name has been shown in the cause list and name called out, has not chosen to come before this Court and dispute this position. 28. Mr.K.Karthikeyan, learned Government Advocate for R8 to R10 submits on instructions that said temples do not find place in the list published by the Commissioner of TN HR & CE Department under section 46. Therefore, we direct R10 to appoint Fit Person(s) qua said temples. Appointment of Fit Person(s) is vide Section 49 is a transitory 18/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022provision. Therefore, appointment of Trustees for said temples also shall follow in accordance with TN HR & CE Act.29. As regards the appointment of Fit Person(s) and Trustees, we make it clear that all the rights and contentions of Mr.R.Krishnan, Mr.V.Ganesh Shankar, Mr.M.Chandran, Mr.N.Janardhanan, Mr.P.Eswaramoorthy and Mr.K.Moorthy, who have been described as representatives of said temples, stand preserved. This order will not impact their rights and they can always make claims as permissible in law more particularly under TN HR & CE Act. 30. In the light of the aforesaid significant averment in the suit that said temples are situate in Government Poramboke land and the counter affidavit filed by R2 (Sub Collector) which says that said land has been classified as 'Natham Thuppuravu Paniyalar Kudiyirupu' (land set apart for providing housing to sanitary workers of the Municipality), we deem it appropriate to direct R4 (Tahsildar) to conduct a survey under the supervision of R1 (District Collector) qua said land, after putting all concerned on notice viz., writ petitioner, Mr.R.Krishnan, Mr.V.Ganesh Shankar, Mr.M.Chandran, Mr.N.Janardhanan, Mr.P.Eswaramoorthy, 19/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022Mr.K.Moorthy, Fit Person(s) to be appointed and any other person who may be concerned with the matter. It is made clear that all the persons put on notice will be entitled to be present at the time of survey. Post survey, R4 (Tahsildar) shall draw up a report. This exercise shall be done within eight weeks from today i.e., on or before 20.08.2025.31. Thereafter, in the survey report, if any encroachment is noticed, proceedings under said 1905 Act shall be initiated within four weeks therefrom i.e., on or before 17.09.2025. If encroachment is found and if proceedings are commenced under said 1905 Act, though obvious, we make it clear that all the rights and contentions of the noticees will remain preserved for being raised in response when show caused. To be noted, said 1905 Act is a self-contained Code which provides for opportunity being given for alleged encroachers about which there is detailed allusion in paragraphs 22 and 24, supra.32. Though obvious, we also make it clear that the aforereferred civil suit which has been filed with prayers for permanent and mandatory injunctions as against the writ petitioner arraying the writ petitioner as sole defendant, any orders/decree in the same will neither impede nor 20/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022serve as an impetus qua the proceedings under said 1905 Act inter-alia owing to section 14 of said 1905 Act.33. Captioned main WP stands disposed of in the aforesaid manner. Consequently, captioned WMP stands disposed of as closed. There shall be no order as to costs.(M.S., J.) (H.C., J.)25.06.2025Index : YesNeutral Citation : Yesgya/vvkTo1.The District CollectorSalem District, Salem2.The Sub-CollectorMettur, Salem District3.The Commissioner Mettur MunicipalityMettur, Mettur Taluk21/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022Salem District4.The TahsildarMettur TalukMettur, Salem District5.The Superintending EngineerMettur Electricity Distribution CircleTANGEDCO, Mettur 636 402Salem District6.The Executive Engineer (O&M)Mettur Electricity Distribution CircleTANGEDCO, Mettur 636 402Salem District7.The CommissionerHindu Religious and Charitable Endowments DepartmentNo.119, Uthamar Gandhi SalaiNungambakkam, Chennai 600 0348.The Joint CommissionerHindu Religious and Charitable Endowments DepartmentKottai Mariamman Temple Complex, Salem 636 0019.The Assistant CommissionerHindu Religious and Charitable Endowments DepartmentKottai Mariamman Temple Complex, Salem 636 001M.SUNDAR, J.ANDHEMANT CHANDANGOUDAR, J.gya/vvk22/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022W.P.No.13831 of 202225.06.2025ADDENDA W.P.No.13831 of 2022ANDW.M.P.No.13115 of 2022M.SUNDAR, J.andHEMANT CHANDANGOUDAR, J.(Order of the Court was made by M.SUNDAR, J.)Captioned matter is listed today under the cause list caption 'FOR 23/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022BEING MENTIONED' as there was a secretarial error in the order dated 25.06.2025.2. Today, Mr.V.Elangovan, learned counsel on record for petitioner, Mr.T.K.Saravanan, learned Additional Government Pleader for Respondents 1, 2 and 4, Mr.P.Srinivas, learned Standing Counsel for third respondent, Mr.L.Jai Venkatesh, learned Standing Counsel for respondents 5 and 6 and Mr.K.Karthikeyan, learned Government Advocate for respondents 8 to 10 are before us.3. It is pointed out that in paragraph 13 and in the first sentence of paragraph 14 of order dated 25.06.2025, some secretarial errors have occurred. Paragraph 13 and first sentence of paragraph 14 read as follows:'13. TN HR & CE Act kicked in (came into force) on and from 28.11.1958. To be noted, sub section (4) of section 92 insofar as it relates to consultative committees and sub committees thereof and section 116(2)(xxi) did not kick in on 28.11.1958 and these two provisions were to come into force on Government notifying the same.14. Prior to 28.11.1958, to be precise on 13.04.1959, the SoR (Statement of Objects and Reasons) qua TN HR & CE Act was published in the Fort St. George Gazette Extraordinary....'24/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 20224. Therefore, we correct the errors. The corrected version of paragraph 13 and the first sentence of paragraph 14 will now read as follows:'13. TN HR & CE Act, which received Presidential assent on 19.11.1959, kicked in (came into force) on and from 01.01.1960 vide a notification dated 16.12.1959 notified in Fort St. George Gazette dated 16.12.1959 made under Section 1(4)(a). To be noted, sub section (4) of section 92 insofar as it relates to consultative committees and sub committees thereof and section 116(2)(xxi) did not kick in on 01.01.1960 and these two provisions were to come into force retrospectively on 28.11.1958 vide section 1(4)(b) of TN HR & CE Act.14. Prior to (Presidential assent) 19.11.1959, to be precise on 13.04.1959, the SoR (Statement of Objects and Reasons) qua TN HR & CE Act was published in the Fort St. George Gazette Extraordinary....'5. All the aforereferred counsel on either side agreed to have the aforementioned correction made. In all other aspects, the order dated 25.06.2025 remains the same. Therefore, this order will now be made as 'Addenda' and Corrigendum / Errata to 25.06.2025 order already pronounced in open court and already uploaded. This order will now be uploaded as 'ADDENDA' to / along with order made by this court on 25.06.2025 and such uploading will replace the order already uploaded. 25/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022Registry is directed to carry out necessary, consequential corrections and issue certified copies accordingly.(M.S.,J.) (H.C.,J.) 21.08.2025vvkM.SUNDAR,J.,andHEMANT CHANDANGOUDAR, J.vvkW.P.No.13831 of 202226/27 https://www.mhc.tn.gov.in/judis W.P.No.13831 of 2022andW.M.P.No.13115 of 202221.08.202527/27