K.Panneerselvam v. The Commissioner, Hindu Religious & Charitable Endowments Board, Chennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 12.10.2009CORAMTHE HON'BLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HON'BLE MR.JUSTICE N.KIRUBAKARANWrit Petition No.47548 of 2006K.Panneerselvam..Petitioner Vs.

The Commissioner, Hindu Religious & Charitable Endowments Board, Chennai.

The Joint Commissioner Hindu Religious & Charitable Endowments Board, Thanjavour.

The Assistant Commissioner Hindu Religious & Charitable Endowments Board, Nagapattinam District.

The District Collector, Nagapattinam District.

The Executive Officer, Arulmigu VedaraniyeswaraswamyTemple, Nagapattinam Dist. .. Respondents-----Petition under Article 226 of the Constitution of India praying for the relief as stated therein.-----For Petitioners : Mr.T.P.Senthil KumarFor Respondents : Mr.D.Srinivasan, AGP.-----

O R D E R(Made by S.J.MUKHOPADHAYA,J.)The writ petition has been filed, under the caption, 'PublicInterest Litigation', seeking to issue a Writ of Mandamus directing the respondents to take appropriate action on the petitioner'srepresentation dated 02.11.2006. https://hcservices.ecourts.gov.in/hcservices/

2. It appears that there was a dispute regarding construction ofa Mosque in the land belonging to Arulmigu VedaraniyeswaraswamyTemple at Tiruthuraipoondi, Nagapattinam District. 3. According to the petitioner, the temple is surrounded by five temples, viz., Mariamman Temple, Angalaparameshwari Temple, KaliAmman Temple, Throupathiamman Temple and Ayyanaar Temple. In the year 1982, some persons belonging to Muslim community, along with some rowdy elements, trespassed into the property, measuring about 19cents, belonging to the Temple and they tried to construct a Mosque. Therefore, a suit in O.S.No.221 of 1982 was preferred by the trustee of the Temple before the District Munsif, Tiruthuraipoondi, for declaration and permanent injunction. The learned Judge, by judgment and decree dated 29.9.1986, granted permanent injunction in favour of the Temple observing that since the property is surrounded by five temples, there would be processions of idols of the said Templesduring festival period and if the Mosque is constructed in the disputed area, then it would create problems to the surroundingTemples.4. It is alleged that nearly 500 Hindu families are residing in that village, whereas only 12 Muslim families are residing in that village and hence the construction of the Mosque in the land belonging to the Temple is totally against justice. Though the said persons did not encroach the land after passing of the said judgment, during 2006, they again took steps for constructing the Mosque in the land belonging to the Temple.5. The first respondent, viz., the Commissioner, HinduReligious & Charitable Endowments Board, Chennai, filed a report stating that one Abdul Kadir and seven others have attempted to trespass in the land in Survey No.544/5 (New Survey No.881/5) in an extent of 0.19 cents belonging to Arulmighu VedaraniyeswaraswamyTemple. Against the said action, the temple authorities have filed asuit in O.S.No.221 of 1982 before the District Munsif Court, Tiruthuraipoondi and the said Court, by judgment dated 29.9.1986,decreed the suit issuing permanent injunction against any attempt of interference in the above land. The encroachers have not preferred any appeal against the judgment passed in the suit.

It is further submitted that Abdul Khader along with others, have again started to enter upon the suit property for construction purposes, against which, the Executive Officer of the Temple made arepresentation to the District Collector, Nagapattinam, vide letter dated 15.11.2002 and the District Collector, Nagapattinam, by proceedings dated 20.11.2002, has issued a direction to the Tahsildar, Vedaranyam to extend assistance required by the ExecutiveOfficer of the Temple to avoid any law and order problem in the site. Subsequently, one Jailani Rowthar, the 5th defendant in O.S.No.221 of1982, made attempts to construct a compound wall in the above site, https://hcservices.ecourts.gov.in/hcservices/ in spite of an order of injunction. The Executive Officer filed aContempt Application before the District Munsif Court and the learnedJudge, vide his order dated 11.2.2004 in C.A.No.118 of 2002,dismissed the application stating that the Temple authorities have failed to prove that the said construction had been made in the suit property and that prior approval of the Commissioner, H.R. & C.E.Administration Department, had not been obtained as per the provisions of the H.R. & C.E. Act.7. It is also submitted that Jailani Rowther and some other persons again made attempts to construct compound wall in the suit property. Against this, the Executive Officer filed a complaint before the Vedaranyam Police Station vide letter dated 20.9.2006,followed by letters to the Electricity Board, requesting not to give electric connection, and Vedaranyam Town Panchayat, requesting not to approve any site plan. However, the said Jailani Rowther and others continued construction of the compound wall. Again a complaint had been lodged before the Tahsildar on 5.10.2006 against the illegal action of the encroachers. The encroachers were stated to have broken the seal and the lock put up by the Temple authorities on07.10.2006, against which, another complaint had been lodged. Thematter had also been reported to the Collector, Nagapattinam, by the Executive officer of the Temple.

We have perused the writ petition and heard the learned counsel appearing for the parties.

The present case has been filed on the ground that in spite of an order of permanent injunction having been granted by the Courtof competent jurisdiction, which decision has reached its finality, the said decision is very often violated. Therefore, we are of the view that the respondents should take steps in accordance with the judgment and decree passed by the learned Judge. If any one violates the Court's order, it should be brought to the notice of the Court to initiate contempt proceedings.

So far as the encroachment is concerned, we only refer to Chapter 6 of the H.R. & C.E. Act 1959, which relates to encroachments. Section 79 refers to the mode of eviction on failure of removal of the encroachment as directed by Joint Commissioner; Section 79A deals with encroachment by group of persons on land belonging to charitable religious institutions and their eviction; Section 79B deals with penalty for offences in connection with encroachment and Section 79C deals with recovery of moneys due to religious institution as arrears of land revenue.

As there is a provision for removal of the act of encroachment made by group of persons on the land belonging to charitable religious institutions, we are of the view that the competent Joint Commissioner and the Commissioner of the H.R. & C.E. https://hcservices.ecourts.gov.in/hcservices/ Department, shall take appropriate steps for removal of theencroachments/encroachers/group of persons from the land, which belongs to the Temple, in accordance with law aforesaid provisions of law. The officials of the H.R. & C.E. Department are further directed to obtain police protection to the Temple and its authorities, if required.