ORDER :

T.S. SIVAGNANAM, J.

The petitioner is a Temple and they have challenged the notice issued by the respondent Corporation stating that an encroachment has been made by the Temple to an extent of 7.35 meters x 3.30 meters by raising a brick wall structure.

2. The petitioner's case is that a Temple has been in existence from time immemorial and with the available records, they can establish that it was there for more than 100 years. The structure of the Temple having become old and dilapidated and on account of the unchecked growth of a peepul tree, the structure got damaged. The petitioner sought permission from the HR&CE Department and obtained permission from the HR&CE Department for reconstruction, by proceedings of the Joint Commissioner, dated 23.7.2019. When the construction was in progress, the impugned notice has been served.

3. The petitioner's case is that there is no encroachment and without issuing notice to the HR&CE Department, which is the authority, who granted permission, the respondent Corporation shall not proceed solely against the petitioner. The Assistant Commissioner, HR&CE Department had filed a counter affidavit on behalf of the respondents 3 and 4, wherein, the following stand has been taken :

“5. It is true that based on the report of the Inspector of HR&CE Department, Trichy, the 4th respondent had recommended for permission to be granted for the renovation of the aforesaid temple and based on the same, the 3rd respondent had in turn granted permission on 23.07.2018, vide proceedings in Se.Mu.Muu.Mu.No.10531/2018/A1, for renovation. It is true that based on such permission, renovation had commenced and was in progress.

6. I submit that at that circumstances, the notice dated 19.03.2019 had been issued by the 2nd respondent as if in T.S.No. 90, Ward O, Block 1 in Paikkara Street in Kayidhe Millath Road, an extent of 7.35m x 3.30m have been encroached in the form of a temple. It is submitted that though the initial history of the temple is not known, the fact remains that the temple also called as Arasamara Pillayar Koil is there in existence for several decades. Even the Town Survey and Resettlement Register of the year 1914 of the village of Trichino Poly Town, Proper No.86, reveals that T.S.No.2004 and 2005 was assessed to ground rent and stood in the name of Poologanathasamy. The same measures about 197 and 298 sq. feet respectively. T.S.No.2008 measuring 110 sq. feet is mentioned as “Sandhu” i.e. lane in the settlement records. All other adjoining survey numbers were assessed to ground rent and were in the name of individuals.

7. It is submitted that the impugned notice is bereft of particulars. Whether T.S.No.2008 co-related to T.S.No.90 mentioned in impugned notice and whether the so called encroachment of 7.35m x 3.30m is in T.S.No.2008 or not is not clear in the impugned notice. Impugned order reads “Paikara Theruvil” T.S.No.90. Whether the lane is S.No.90 or not, is not made clearly known. If it is in Street, what is its survey number, its total extent, the actual area of so called encroachment must be spelt out clearly.

8. It is submitted that, our enquiry reveals that for the petitioner is putting up temple in the same area for the same extent as it was prevelant all along. Therefore, in the said circumstances, what is required is a proper survey with help of relevant records i.e. revenue records, municipal corporation records and documents of writ petitioner etc., that too in the presence of all. Appropriate proceedings need to be taken, if necessary, only thereafter.

9. It is submitted that thus the respondents 1 & 2 have failed to follow proper procedures and ascertain proper facts before ever proceeding to act. The impugned proceeding is liable to be set aside as not supported by proper survey and proper ascertainment of facts. Hence, in the interest of justice, appropriate orders may be passed in this regard. The temple construction is half way through and have now been installed. Hence,