Madras High Court
S.Natarajan vs The Joint Commissioner on 17 December, 2021
WP(MD) No.2509 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :17.12.2021
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR
W.P(MD) No.2509 of 2016
S.Natarajan ... Petitioner
Vs.
1.The Joint Commissioner,
Hindu Religious and Charitable Endowment,
Srirangam, Trichy.
2.The Assistant Commissioner,
Hindu Religious and Charitable Endowment,
Srirangam, Trichy.
3.The Commissioner,
Thiruvarumbur Panchayat Union,
Thiruvarumbur, Trichy District.
4.The President,
Vengur Village Panchayat,
Thiruvarumbur Taluk,
Trichy District. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, for
the issuance of a Writ of Mandamus, directing the respondents 3 and 4 to
hand over the temple tank situated in SF.No.170/2 to an extent of 1 Acre,
Vengur Village Panchayat, Thiruverumbur Taluk, Trichy District to Sri
1/12
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WP(MD) No.2509 of 2016
Ayyanar Sambugamoorthi Temple, Vengur Village Panchayat, Trichy
District and further directing the respondents 1 and 2 to take appropriate
action against the 4th respondent for unjust enrichment and misuse of temple
tank by auctioning fishery rights to private individuals and to recover the
amount collected through auctioning of fishery rights of the temple tanks
from the 4th respondent on the basis of the representation of the petitioner
dated 03.01.2016, within a time frame fixed by this Court.
For Petitioner : Mr.Pradeep
for Mr. B.Saravanan
For Respondents : Mr.T.Amjadkhan,
Govt. Advocate for R1 & R2
No Appearance for R3 & R4
ORDER
This order will dispose of the captioned writ petition.
2. Read this in conjunction with and in continuation of earlier
proceedings made by me in the previous listing on 02.12.2021, which reads
as follows:
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WP(MD) No.2509 of 2016
'Read this in conjunction with and in continuation of
earlier proceedings made in previous listing on 18.11.2021.
Today Mr.Pradeep, learned counsel representing the counsel
on record for writ petitioner and Mr.T.Amjadkhan, learned
Government Advocate on behalf of respondents 1 and 2 are
before this Court.
2. To be noted, this Court is informed that respondents 3
and 4 have been duly served and their names are shown in
cause list (shown together with full/complete address in the
cause title) but there is no representation. All these are
captured in paragraph 2 of the previous order, the position is
no different today.
3. Subject matter of captioned writ petition is two
waterbodies i.e., 'two ponds situate in Survey No.170/2
admeasuring 1 acre or thereabouts and Survey No.170/3
admeasuring 70 cents or thereabouts at Vengur Village
Panchayat, Thiruverumbur Taluk, Trichy District' (hereinafter
referred to as 'said ponds' for the sake of convenience and
clarity).
4. Learned counsel for writ petitioner contends that
said ponds belong to a public temple which goes by the name
of 'Sri Ayyanar Sambugamoorthi Temple' (hereinafter referred
to as 'said Temple' for the sake of convenience and clarity).
5. The complaint of learned counsel for writ petitioner
is that respondents 3 and 4 i.e., the Commissioner and
President of the local body (Vengur Village Panchayat) have
auctioned fisheries rights in the said ponds which according to
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WP(MD) No.2509 of 2016
learned counsel is illegal and it is the further case of the writ
petitioner that such ponds have not been handed over to the
said Temple. Learned counsel draws the attention of this Court
to a communication dated 02.09.2002 from the jurisdictional
Assistant Commissioner (second respondent) i.e.,
jurisdictional Assistant Commissioner of Tamil Nadu Hindu
Religious & Charitable Endowments Department to the third
respondent-Commissioner of the local body, Thiruverumbur
and a scanned reproduction of the same is as follows:
6. Learned State counsel for respondents 1 and 2
submits that said ponds have not been handed over to said
Temple as yet. Learned State counsel to obtain instructions on
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WP(MD) No.2509 of 2016
the current obtaining position and revert to this Court.
7. List after a fortnight.
8. List on 17.12.2021.'
3. A perusal of the aforementioned proceedings made by me in the
previous listing captures the essential facts of the case, crux and gravamen
of the lis and the trajectory the matter has taken. Pursuant to
aforementioned proceedings Mr.T.Amjadkhan, learned Government
Advocate on behalf of respondents 1 and 2 submits that he has since
obtained instructions and the instructions are as follows:
a) the writ petitioner is a hereditary trustee of said
temple; and
b) said ponds were given to the local body i.e.,
Thiruvarumbur Panchayat Union on an understanding
between the writ petitioner and the fourth respondent for
silting.
4. Mr.Pradeep, learned counsel representing the counsel on record for
writ petitioner reiterates his submissions which have been captured in the
proceedings made in the previous listing on 02.12.2021.
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WP(MD) No.2509 of 2016
5. Before I proceed further, it is made clear that the same short forms
and references for the sake of convenience and clarity used in the previous
proceedings (extracted and reproduced supra) shall continue to be used in
this order also. It is also made clear that this order has to be read in
continuation of and in conjunction with earlier proceedings. In other words,
the aforementioned earlier proceedings will form an integral part and parcel
of this order.
6. There is yet another point which needs to be noticed, as recorded in
the previous proceedings, respondents 3 and 4 viz., Commissioner and
President (respectively) of the local body viz., Vengur Village Panchayat
have been duly served and these respondents together with full / complete
addresses as in the cause title are shown in the cause list but none appears.
This Court is also informed that they have not chosen to enter appearance
through a counsel. Therefore, I proceed with the matter.
7. In the matter on hand, I am concerned with two aspects of the case.
One is temple property i.e., said ponds and and the other is preservation of
water bodies i.e., said ponds.
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WP(MD) No.2509 of 2016
8. I will deal with the first aspect of the matter to start with. As far as
temple properties are concerned, law is well settled that this Court is
parens patriae and regarding idol, it is in the status of a minor and this
Court is guardian. The lead case in this regard is A.A.Gopalakrishnan's case
[A.A.Gopalakrishnan v. Cochin Devaswom Board and Ors.,] reported in
(2007) 7 SCC 482, wherein Hon'ble Supreme Court has held that it is the
duty of this Court to protect temple properties.
9. On the second facet of the matter viz., water bodies, I deem it
appropriate to refer to a Full Bench Judgment of our High Court i.e., Full
Bench presided by Hon'ble Mr.SANJAY KISHAN KAUL, Chief Justice of
this Court (as His Lordship then was). In T.K.Shanmugam Vs. State of
Tamil Nadu reported in 2015 (5) LW 397, the requirement to protect tanks
and water bodies was emphasized. This Full Bench answered a reference
but the emphasis qua water bodies has been neatly captured in paragraphs
28 and 29 of a subsequent T.K.Shanmugam case being T.K.Shanmugam Vs
State of Tamil Nadu in W.P.No.1295 of 2009 vide judgment dated
27.11.2015 [reported in 2016-1-LW-168]. Paragraphs 28 and 29 of this
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WP(MD) No.2509 of 2016
judgment read as follows:
'28. That apart, while answering the reference in a Writ
Petition filed at the instance of the petitioner herein, viz., T.K.
Shanmugam vs. The State of Tamil Nadu [2015 (5) LW 397],
the Full Bench of this Court, after considering the various
Government Orders and the judgments of this Court and also
following the observations and directions issued by the Hon'ble
Apex Court, vide order dated 30.10.2015, has held that even
the tanks which do not fall within the purview of the Tamil
Nadu Protection of Tanks and Eviction of Encroachment Act,
2007, also require protection from encroachment and any
encroachment made in such tanks or water bodies have to be
removed by following the provisions of the Act.
29. It is significant to point out that the Hon'ble Apex
Court in a series of judgments, has held that statutory rules
cannot be amended by Executive instructions but "if the rules
are silent" on any particular point, Government can fill up the
gaps by issuing executive instructions, in conformity with the
existing rules. Having regard to the acute water scarcity
recurring in the State of Tamil Nadu as a whole, we feel that a
time has come where the State has to take some definite
measures to restore the already ear marked water storage
tanks, ponds and lakes, to its original status as part of its rain
water harvesting scheme, which has already been initiated.'
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WP(MD) No.2509 of 2016
10. Therefore, the need and necessity to preserve water bodies i.e.,
said ponds need not be overstated. It will suffice to go by T.K.Shanmugam
ratio. In the light of the stated position of the writ petitioner and learned
State Counsel and more particularly in the light of letter dated 02.09.2002
bearing reference e.f.vz;.8144/2002.m8 written by the second respondent to
the third respondent (scanned and reproduced in the previous proceedings
which has in turn be reproduced supra), I deem it appropriate to issue a
positive direction to respondents 3 and 4 to handover said ponds forthwith
to the second respondent, who is the jurisdictional Assistant commissioner
of 'Tamil Nadu Hindu Religious and Charitable Endowments
Department' (TN HR&CE Dept.) who is the jurisdictional Assistant
Commissioner qua said temple which is admittedly under the sweep of
'Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (Tamil
Nadu Act 22 of 1959)' (hereinafter 'TN HR&CE Act' for the sake of
convenience and clarity). This directive shall be completed within a
fortnight from today i.e., on or before 31.12.2021.
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WP(MD) No.2509 of 2016
11. The captioned writ petition is disposed of with the above
directives. No costs.
12. Though the captioned writ petition is disposed of, Registry to list
this matter under the cause list caption 'FOR REPORTING COMPLAINCE'
on 04.01.2022.
vsm 17.12.2021
Index : Yes/No
Internet : Yes /No
Note: Issue order copy / upload / despatch today (i.e., 17.12.2021)
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WP(MD) No.2509 of 2016
To
1.The Joint Commissioner,
Hindu Religious and Charitable Endowment,
Srirangam, Trichy.
2.The Assistant Commissioner,
Hindu Religious and Charitable Endowment,
Srirangam, Trichy.
3.The Commissioner,
Thiruvarumbur Panchayat Union,
Thiruvarumbur, Trichy District.
4.The President,
Vengur Village Panchayat,
Thiruvarumbur Taluk,
Trichy District.
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WP(MD) No.2509 of 2016
M.SUNDAR, J.
vsm
W.P(MD) No.2509 of 2016
17.12.2021
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