Proper representation to concerned authorities for action against encroachment, responsibility of Highways Department to remove encroachments and seek police protection, dismissal of Writ Petition due to misconceived nature and malafide motive

JUDGMENT

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus, directing the respondents 1 to 8 to remove the encroachments over the Temple land in Survey No.299/2 at Thanichiyam Village, Vadipatti Taluk, Madurai District and on the abutting National Highway and to hand over the Temple 'land' and 'jewellry' to the custody of the Temple authority of 'Arulmighu Sastha Ayyanar Temple' situated at Ayyankottai Village, Vadipatti Taluk, Madurai District.)

D. Krishnakumar, J.

1. The petitioner has filed the present Writ Petition for issuance of a Writ of Mandamus, directing the respondents 1 to 8 to remove the encroachments made in the Temple land in Survey No.299/2 at Thanichiyam Village, Vadipatti Taluk, Madurai District and on the abutting National Highway and to hand over the Temple 'land' and 'jewellery' to the custody of the Temple authority of 'Arulmighu Sastha Ayyanar Temple' situated at Ayyankottai Village, Vadipatti Taluk, Madurai District.

2. According to the petitioner, the land comprised in Survey No.299/2, Thanichiyam Village, Vadipatti Taluk, Madurai District, which is classified as a Temple land, has been encroached by the ninth respondent. Therefore, he seeks a direction for the removal of encroachment.

3. The seventh respondent has filed a counter-affidavit, wherein it is stated as follows:

4. It is further submitted that ninth respondent has encroached 8 feet of the property of the Temple is not correct and there is no encroachment on the Temple property and the Temple property has been properly fenced and if ninth respondent has completed the construction on 20.03.2013 nothing prevented the petitioner to take legal action and the Writ Petition is liable to be dismissed on the grounds of laches. It is humbly submitted that there is no encroachment in the Temple land and the attitude of the petitioner in surveying the property is self-explanatory.

5. It is further submitted that the Temple does not permit any person visiting ninth respondent/Hotel to park their vehicles and vehicles coming to the Temple alone are permitted to be parked and the keys of the Temple as averred by the writ petitioner are not with ninth respondent and it is only with the Temple authorities and there is no vested interest on the part of this respondent as averred by the petitioner and the same is invented to file the petition.'

4. Recording the statement made by the seventh respondent, no further orders are necessary as against the seventh respondent. If there is any encroachment on the said Temple land, it is for the petitioner to make a fresh representation to the Joint Commissioner, Hindu Religious and Charitable Endowments Department for taking necessary action as against the person concerned.

5. The other allegation of the petitioner is that the ninth respondent has encroached upon the Highways land.

6. The Highways authority, namely, the fifth respondent, has filed a counter-affidavit, wherein it is stated as follows:

5.It is submitted that the allegation of petitioner is that the ninth respondent has illegally encroached upon the service road to an extent of 15 feet against his own approved building plan which is used partly as building and car parking area. In this regard, the right of way on that spot was measured and found that there is a temporary approach road formed in the channel along the side of the right of way to a length of about 25m by laying 1.5 feet height cement pipe. Except this, there is no other encroachments. As regards this approach road, eviction notice has been issued to the ninth respondent to remove the said approach road.'

7. The learned counsel appearing for the fifth respondent submitted that the fifth respondent has issued a notice to the ninth respondent to remove the encroachment ie., approach road. He further submitted that the police authority, namely, the Inspector of Police, Vadipatti, has not provided p