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2020 Supreme(Mad) 707
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M. SATHYANARAYANAN, P. RAJAMANICKAM, JJ.
R. Padmavathy – Appellant
Versus
The Junior Engineer, Water Resources Organization, Public Works Department, Thanjavur – Respondent
W.P. (MD) No. 18388 of 2017 & W.M.P. (MD) No. 14830 of 2017
Decided on : 03-08-2020
Advocate Appeared:
For the Appellant :K. Baalasundharam, Advocate.
For the Respondent: VR. Shanmuganathan, Special Government Pleader.
Encroachment on public land, especially water bodies, for religious activities is impermissible.
Headnote:
Encroachment - Tamil Nadu Protection of Tank and Eviction of Encroachment Act - Section 6(1) - 2007 - 2015-5 LW-397
Fact of the Case:
The petitioner, wife of Late Ramamoorthy Swamigal, challenged a notice alleging encroachment on a water body. The petitioner claimed that her husband had constructed a temple and consecrated it, while the respondent alleged encroachment on the water body.
Finding of the Court:
The court found that the petitioner's claim of no encroachment contradicted her response to the notice. It also noted the unusual grant of free house site pattas to both the husband and wife. The court held that the encroachment on the water body was impermissible, citing a Full Bench Judgment.
Issues: Alleged encroachment on a water body, contradictory claims by the petitioner, and the grant of free house site pattas to the husband and wife.
Ratio Decidendi: The court held that encroachment on a water body, especially for religious activities, is impermissible. It also noted the contradiction in the petitioner's claims and the unusual grant of free house site pattas.
Final Decision: The writ petition was dismissed, the interim order was vacated, and the respondent was directed to expedite the eviction process. The court also ordered the respondent to file a status report within ten weeks.
JUDGMENT :
M. Sathyanarayanan, J.
(Prayer: Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari calling for the records pertaining to the respondent, dated 24.08.2017, issued in the name of the petitioner and her husband namely Ramamoorthy (deceased) and quash them as arbitrary and illegal.)
1. The petitioner is the wife of Late Ramamoorthy Swamigal and according to her, her husband had the blessings of Arulmigu Athimariamman and during his life time, he constructed and consecrated a temple viz., “Athimariamman temple” in S.F.No.42/2 near Vadavaru Railway Gate, Pulianthoppu Village, Thanjavur District and the Rajagopuram is having a height of 60 feet and presiding deity viz., Lord Siva in the form of Lingam and it is one of the biggest Lingams in Thanjavur District.
2. Mr.K.Baalasundharam, learned Counsel appearing for the petitioner would submit that the petitioner as well as her husband had been granted with free house site pattas in S.F.No.42/2 of Pulianthoppu Village, Thanjavur District, vide proceedings dated Nil.06.1991, admeasuring to an extent of 0.00.5 cents each and neither the husband of the petitioner nor the petitioner had been encroached upon an inch of land beyond the land assigned to them in S.F.No.42/2 and the attention of this Court has been invited to paragraph No.6 of the affidavit filed in support of the writ petition.
3. The primordial submission made by the learned Counsel appearing for the petitioner is that if proper survey is carried out in the presence of the petitioner, the truth will come out that no encroachment has been caused upon S.F.No.42/2, as alleged in the impugned notice and hence, prays for appropriate orders.
4. The writ petition was entertained and the interim orders were granted.
5. The sole respondent has filed the counter affidavit dated 24.10.2017, wherein it has been stated, among other things, that the water body viz., “Samudram Eri” is a “System Eri” (water body) under the Grand Anaicut Canal River System, situated in Pulianthope Village, Thanjavur Taluk and District and the said Tank was surveyed and the boundaries of the tank were identified and peg marked and it was found that there were 91 encroachments in the said water course poramboke in an extent of nearly 4-18 acres by putting up various kinds of encroachments and the details of which are given in paragraph No.3 of the counter affidavit and it is relevant to extract the same hereunder:
“(a) Garden and Fencing - 41 Nos
(b) Houses - 45 Nos
(c) Temple - 2 Nos
(d) Others such Over Head Tank Burial ground etc., - 3 Nos”
It is further pointed out that 41 encroachments, such as, gardening and fencing made in the tank bunds were removed in terms of the provisions of the Tamil Nadu Protection of Tank and Eviction of Encroachment Act, 2007 and the Rules framed thereunder.
6. The husband of the petitioner was issued with a notice, dated 24.08.2017 under Form-III of the Tamil Nadu Protection of Tank and Eviction of Encroachment Act, 2007 read with Section 6(1) of the Act, stating among other things, that he has encroached upon a part of “Samudram Eri” (water body) in S.F.No.48/2, admeasuring to an extent of 10,472 sq.meters and similarly, the petitioner has also been issued with notice on 24.08.2017 as to the encroachment caused by her in the same water body, admeasuring to an extent of 132 sq.meters. The petitioner, to the said notice, submitted her response, dated 04.09.2017, as to the good deeds and religious deeds performed by her husband and prays for protection of the said temple.
7. The learned Special Government Pleader appearing for the respondent would submit that the majority of the encroachments in water body had been removed and in the light of the interim order being operated in this writ petition, the encroached portion of the water body in possession of the petitioner's husband as well as the petitioner have not been removed and further would add that the proceedings for removal of encroach
