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Even If 'GOD' Encroaches Upon Public Space, Will Order Its Removal: Madras High Court

Sebin James
25 March 2022 9:15 AM GMT
Even If GOD Encroaches Upon Public Space, Will Order Its Removal: Madras High Court
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Madras High Court has observed that "even if GOD encroaches upon public space, Courts will direct removal of such encroachments", since public interest and rule of law must be safeguarded and upheld. The High Court harshly criticised the encroachment made by Arulmighu Palapattarai Mariamman Tirukoil on a public street, by stating that courts are no more concerned by 'who or in what name'...

Madras High Court has observed that "even if GOD encroaches upon public space, Courts will direct removal of such encroachments", since public interest and rule of law must be safeguarded and upheld.

The High Court harshly criticised the encroachment made by Arulmighu Palapattarai Mariamman Tirukoil on a public street, by stating that courts are no more concerned by 'who or in what name' the encroachment takes place.

Justice N. Anand Venkatesh was hearing the second appeal filed by the temple against the lower appellate court judgment and decree restraining them from putting up construction in Mariamman Koil street.

"There used to be a time when some individuals developed an impression that they can encroach upon a public space in the name of a temple or by planting an idol in that place...Courts cannot be hoodwinked by encroaching and constructing a temple in the name of God. We have enough temples and no God has made any request to construct new temples by encroaching upon public space or by raising a structure in the name of the temple", the court further added in the order.

After perusing the reports submitted by the Advocate Commissioner, the court expressed its disapproval about the temple proceeding with the construction despite a status quo order and, in fact, completing the construction.

The single bench was also critical about the conduct of the Municipality in the issue. The Municipality had earlier sent a notice to the defendant temple to immediately stop the encroachments made upon the public street. Later, when the suit came to be filed, Municipality took the stand that the Government was in control of the street since it was a Sarkar Poramboke land. The court agreed with the lower appellate court and remarked that such technical pleas cannot justify the act of the temple.

"In the present case, it is quite unfortunate that the 2nd defendant Municipality virtually attempted to wash off their hands by blindly supporting a flagrant encroachment made by the 1st defendant Temple. This sudden change of stand taken by the 2nd defendant was probably due to some official who was handling the case wrongly understanding the term "God Fearing". 

About another stance taken by the defendants that the Government has been added as a party since the schedule property has been categorised as poramboke land, the bench reiterated that this too was a hypertechnical plea that wouldn't whitewash the public wrong committed y the temple.

"In cases of this nature, the Courts should not be swayed by technical objections and the overall interest of the public must be the guiding factor", the court added.

Relying on K.Sudarsan  & Ors vs. The Commissioner, Corporation of Madras & Ors (1983), the court observed that the right of the member of the general public to use every inch of a highway or a public street cannot be shaken at all. In the light of the above judgment, there is no requirement for the plaintiffs to establish any right of easement to the property, the court added:

"Even assuming that the plaintiffs have alternate access to their property, that does not mean that the plaintiffs can be deprived of their right to use a public street for ingress and egress to their property.... It was further held [in K Sudasan]  that the owner of the property adjacent to a public street has got the right to access such street at any point at which his property actually touches the street."

The court concluded that the second defendant Municipality was maintaining the street for the general public and there are official records mentioning the street. The lower appellate court had also rendered a finding that there was a tar road in the street which was removed when the suit was filed and there is only space for one person to barely go through the street on account of temple's construction activities now.

"This construction had also virtually prevented the plaintiffs from having ingress and egress to their property", the court noted.

"The photographs that were produced before this Court shows that the plaintiffs have been completely prevented from having any access to the public street from their property. They have to be literally air dropped into their property. The conduct of the 1 st defendant Temple is highly condemnable".

Stating the above, the High Court refused to tinker with the judgment and decree made by the lower appellate court in favour of the plaintiffs.

Case Title: Arulmighu Palapattarai Mariamman Tirukoil v. Pappayee & Ors.

Case No: S.A.No.190 of 2013 & M.P.No.1 of 2013

Citation: 2022 LiveLaw (Mad) 119

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