Madras High Court
Ponragavan vs The Secretary on 10 January, 2025
W.A(MD)NOS.116 & 217 OF 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 19.11.2024
Pronounced on : 10.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
AND
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
W.A(MD)Nos.116 & 217 of 2020
and
C.M.P(MD)Nos.1018 & 1481 of 2020
In W.A.(MD)No.116 of 2020:
Ponragavan :Appellant/Petitioner
.vs.
1.The Secretary,
Home Department,
Fort St.George, Chennai.
2.The District Collector,
Nagercoil, Kanyakumari.
3.The Revenue Divisional Officer,
Nagercoil, Kanyakumari.
4.The Superintendent of Police,
Kanyakumari.
5.The Inspector of Police,
Suchindram Police Station,
Suchindran, Kanyakumari.
6.C.Devadhas. : Respondents/Respondents
1/18
https://www.mhc.tn.gov.in/judis
W.A(MD)NOS.116 & 217 OF 2020
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent
praying this Court to set aside the order passed by this Court in
W.P(MD)No.1185 of 2020, dated 23.01.2020.
For Appellant :Mr.T.Arunan
For Respondent-6 :Mr.Ajmal Khan,
Senior Counsel
for Mr.M.Mahaboob Athiff
In W.A.(MD)No.217 of 2020:
1.The Government of Tamil Nadu,
Represented by its Secretary,
Home Department,
Fort St.George, Chennai.
2.The District Collector,
Nagercoil, Kanyakumari.
3.The Revenue Divisional Officer,
Nagercoil, Kanyakumari.
4.The Superintendent of Police,
Kanyakumari.
5.The Inspector of Police,
Suchindram Police Station,
Suchindran, Kanyakumari. :Appellants/Respondents
.vs.
C.Devadhas. : Respondent/Petitioner
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent
praying this Court to set aside the order passed by this Court in
2/18
https://www.mhc.tn.gov.in/judis
W.A(MD)NOS.116 & 217 OF 2020
W.P(MD)No.10694 of 2014, dated 19.12.2018.
For Appellant :Mr.Veerakathiravan,
Additional Advocate General -III
asst by Mrs.D.Farjana Ghousia
Special Government Pleader
For Respondent :Mr.Ajmal Khan,
Senior Counsel
for Mr.M.Mahaboob Athiff
COMMON JUDGEMENT
*************
[Judgement of the Court was made by N.SENTHILKUMAR,J.]
The Writ Petitioner one Ponragavan had filed the Writ Petition in
W.P.(MD)No.1185 of 2020 to refrain the sixth respondent from putting
up a gate or arch or name board of the Church in the disputed land in
survey No.283/5, situated in Mathusuthanapuram Village,
Agasteeswaram Taluk, Kanyakumari District.
2. The learned Single Judge by taking note of the submissions
made by the learned Special Government Pleader that there is likelihood
of law and order problem between two religious groups in the said area
by allowing the sixth respondent, namely, G.Devadhas to put up
construction would result many problems, which may affect the general
3/18
https://www.mhc.tn.gov.in/judis
W.A(MD)NOS.116 & 217 OF 2020
public in the locality, disposed of the said Writ Petition. Challenging the
same, the appeal has been filed in W.A.(MD)No.116 of 2020.
3. Similarly, G.Devadhas, who is arrayed as sixth respondent in
W.P.(MD)No.1185 of 2020 had filed a Writ Petition in W.P.(MD)No.
10694 of 2014 with a prayer to refrain the respondents 2 to 5 therein or
their subordinates from in any way interfering with the petitioner’s right
to deal with his property including effecting of construction of a gate,
arch and name board of the Church in the property of the Church in
survey No.283/5, situated in Mathusoohtanapuram village,
Agastheeswaram Taluk, Kanyakumari District.
4. The learned Single Judge, after hearing the parties and the
counter filed by the fifth respondent therein, namely, Inspector of Police
that the petitioner's Church was located in a very communally sensitive
area and any construction by the petitioner may lead to breach of peace,
communal problem and disturb the cordial relationship, allowed this Writ
Petition.
4/18
https://www.mhc.tn.gov.in/judis
W.A(MD)NOS.116 & 217 OF 2020
5. The facts are common in both the Writ Petitions and the present
Writ Appeals are one and the same.
6. G.Devadhas, the Writ Petitioner in W.P.(MD)No.10694 of 2014,
who was a Secretary of CSI Church, Pillayarpuram in Agastheeswaram
Taluk, Nagercoil, Kanyakumari District, stated that the Church building
is situated in survey No.283/19, which is the property of the Church to an
extent of 16.5 cents. Apart from the abovesaid property, the Church has
also owned lands in survey Nos.283/18, 283/21, 283/5 in
Mathusoothanapuram Village. Out of the said property, the vacant land in
survey No.283/5, measuring 1 cent and 620 sq.links was purchased by
the Church by a registered sale deed in Doc.No.716 of 2009, dated
26.02.2009. Later, they obtained patta with regard to survey No.283/5 in
patta No.4995 and they are in possession of the said property, since
26.02.2009. The petitioner claims that in the land to an extent of 1 cent
620 sq. links in survey No.283/5, which absolutely belongs to the
petitioner's Church, the petitioner’s Church has the right to put up
construction under Article 300A of the Constitution of India.
5/18
https://www.mhc.tn.gov.in/judis
W.A(MD)NOS.116 & 217 OF 2020
7. The counter was filed by the fifth respondent/Inspector of
Police, Suchindram Police Station, stating that the land in survey No.
283/5 was named as water tank street and the same was maintained by
the local Panchayat and the Tahsildar. According to the counter, the Writ
Petitioner wanted to establish his title and right over the property
measuring 1 cents 620 sq. links in survey No.283/5.
8. Mr.Ajmal Khan, the learned Senior Counsel appearing for the
Writ Petitioner in W.P.(MD)No.10694 of 2014/respondent in W.A.
(MD)No.217 of 2020/sixth respondent in W.A.(MD)No.116 of 2020
would contend that the Church is protected by constitutional freedom as
enshrined under Article 26 of the Constitution of India, which is
extracted hereunder:
“26. Subject to public order, morality and health, every
religious denomination or any section thereof shall have the
right:
(a) to establish and maintain institution for religious and
charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property;
and
6/18
https://www.mhc.tn.gov.in/judis
W.A(MD)NOS.116 & 217 OF 2020
(d) to administer such property in accordance with law.”
9. The learned Senior Counsel contended that when the property
vest with the petitioner’s Church, there cannot be any restriction by the
Government officials or by any individual or by any section of people to
put up any construction in their private premises.
10. The learned Senior Counsel further referred to the finding of
the learned Single Judge in W.P.(MD)No.10694 of 2014 that the
respondents (appellants) were directed to issue show cause notice to the
Writ Petitioner within a period of four weeks and thereafter, by getting a
reply from the Writ Petitioner, the fifth respondent, namely, the Inspector
of Police was directed to pass appropriate orders and if no notice would
be issued within a period of four weeks as mentioned above, the Writ
Petitioner was at liberty to put up gate or arch, after duly informing the
respondents in writing. Aggrieved by the same, the State has preferred
appeal in W.A.(MD)No.217 of 2020.
11. Mr.Veerakathiravan, learned Additional Advocate General-III
appearing for the respondents in W.P.(MD)No.10694 of 2014/appellants
7/18
https://www.mhc.tn.gov.in/judis
W.A(MD)NOS.116 & 217 OF 2020
in W.A.(MD)No.217 of 2020/respondents 1 to 5 in W.A.(MD)No.116 of
2020 would contend that though the Writ Petitioner G.Devadhas claims
title over the property in survey No.283/5, which was purchased by way
of registered sale deed in Doc. No.716 of 2009, dated 26.02.2009, by the
proceedings of the Block Development Officer in
Na.Ka.No.A5/1551/2019, dated 03.02.2020, the Writ Petitioner
G.Devadhas was intimated that as per G.O.Ms.No.255, Rural
Development (C2) Department, dated 18.08.1997, an application has to
be made before the Panchayat for getting building plan approval from the
Panchayat. Though the above said finding was given by the learned
Single Judge in W.P.(MD)No.10694 of 2014 directing the respondents to
permit the Writ Petitioner to put up construction, the Block Development
Officer has informed that necessary orders to be obtained from the Court
as there should be compliance with regard to G.O.Ms.No.255, Rural
Development (C2) Department, dated 18.08.1997. Pursuant to the order
of the learned Single Judge in W.P.(MD)No.10694 of 2014, dated
19.12.2018, the petitioner did not comply with the said G.O. A Contempt
Petition in Cont.P(MD)No.1116 of 2019 was filed, wherein, on
13.02.2020, the petitioner (C.Devadhas) was directed to proceed with the
8/18
https://www.mhc.tn.gov.in/judis
W.A(MD)NOS.116 & 217 OF 2020
direction, which was proposed to be passed in W.A.(MD)No.217 of
2020.
12. The learned Additional Advocate General further contended
that the Block Development Officer has already intimated that necessary
planning permission has to be obtained from the local authority by
communication, dated 03.02.2020 to the Writ Petitioner G.Devadhas.
Hence, aggrieved by the finding of the learned Single Judge, both the
appeals.
13. The Additional Advocate General had circulated a proceedings
of the District Collector of Kanyakumari District vide proceedings in
Pa.Mu.C3/16507/2022 dated 30.10.2023. The said proceedings relates to
an enquiry contemplated in survey Nos.283/19, 291/4, wherein CSI
Church was sought for planning permission for renovation and
construction of church. In the abovesaid proceedings, the Collector had
stated that regarding the properties in survey Nos.283/14, 15, 16, 283/17,
291/3, 6, 283/18, 291/4, 291/1 and 291/7, a suit was filed in O.S.No.1249
of 1988 before the Trial Court with a prayer to permit the usage of the
9/18
https://www.mhc.tn.gov.in/judis
W.A(MD)NOS.116 & 217 OF 2020
road as a public road, wherein the Trial Court allowed the suit, against
which, A.S.No.27 of 1991 was filed, wherein, an Advocate
Commissioner was appointed to ascertain as to whether there is a public
passage or not in survey Nos.283/19 and 291/4.
14. The learned Additional Advocate General also circulated a
copy of a letter of Block Development Officer addressed to the Tahsildar,
Agastheeswaram in Na.Ka.No.A1/1134/12, dated 04.05.2012, wherein, it
is stated that in survey No.283/5, there was a lamp post, electricity
connection, water connection.
15. The learned Additional Advocate General has circulated an
Encumbrance Certificate issued by the SRO, Edalakudi, dated
18.11.2024 with regard to the survey No.283/5. It is found that in survey
No.283/5, the Encumbrance Certificate would reveal the boundaries as
follows:
“//// nkw;fUnfhL nkw;go KUfd; kidapy; nkw;fUnfhLk;
tlf;nfa[s;s nuhL tiu tHpele;J bfhs;Sk; ghij
mtfhrKk;”
10/18
https://www.mhc.tn.gov.in/judis
W.A(MD)NOS.116 & 217 OF 2020
16. As per page No.11 of the ‘A’ Register with regard to survey
No.283/5, in column 11, it is stated that ‘Na.Thangasamy (1),
Na.Ayyakutti (2), Na.Arumugakkannu (3)’ and in column 12, it is found
that ‘Nilaviyal pathai’ which is mentioned as passage in the above survey
number.
17. The Additional Advocate General further relied upon the typed
set of paper filed in W.A.(MD)No.116 of 2020 at page No.26, wherein,
the Block Development Officer has also informed the Tahsildar vide
proceedings Na.Ka.No.A1/1134/12, dated 04.05.2012 that in survey No.
283/5 is a cement road maintained by Athikkattuvilai Panchayat and the
said place is used as a road by the people without any hindrance. Hence,
prayed to allow these appeals.
18. Heard both sides and perused the records.
19. Both the Writ Appeals in W.A.(MD)Nos.116 & 217 of 2020
have been filed, aggrieved by the order passed by this Court in W.P.
11/18
https://www.mhc.tn.gov.in/judis
W.A(MD)NOS.116 & 217 OF 2020
(MD)No.1185 of 2020 filed by one Ponragavan and in another W.P.
(MD)No.10694 of 2014 filed by G.Devadhas, where the subject matter of
the both the cases raised regarding survey No.283/5.
20. The CSI church claims title over the property by virtue of the
sale deed in Doc.No.716 of 2009, dated 26.02.2009 by stating that after
purchase of the said property, they are in actual possession of the suit
schedule property. It is not in dispute with regard to the direction given
by this Court to continue the construction when a construction is
permitted to take place. However, Such construction has to be carried
out only after getting necessary approval from the competent authority,
namely, local authority or the local body as per the Act.
21. When there is a dispute with regard to the passage through
road in survey No.283/5 with a rival claim, the Court cannot ignore the
vital objection raised by the Inspector of Police, Suchindram Police
Station with regard to livelihood break up law and order situation
between two religious groups.
12/18
https://www.mhc.tn.gov.in/judis
W.A(MD)NOS.116 & 217 OF 2020
22. As per the counter filed by the Inspector of Police, Suchindram
Police Station that a case was registered in Cr.No.153 of 2008 under
Sections 147, 148, 188, 353, 332, 336, 307, 115A of IPC, Section 3(c) of
the Tamil Nadu Public Property (Prevention of Damage and Loss) Act,
1992 and Section 25(1A) of the Arms Act, 1959 against one
Balasubramanian and 21 others and the same is pending before the I
Additional Sessions Court, Kanyakumari District at Nagercoil in S.C.No.
53 of 2013.
23. It is also brought to our knowledge by the learned counsel
appearing for the Writ Appellant in W.A.(MD)No.116 of 2020 that a
criminal case was registered regarding the issue between two religious
groups.
23(a). Though the property was purchased by the CSI Church on
26.02.2009 to an extent of 1.620 cents in R.Survey No.283/5 situated at
Pillayarpuram Village, Agastheeswaram Taluk, Nagercoil, Kanyakumari,
through sale deed in Doc.No.710/2009 registered in the O/o. the Sub
Registrar, Edalakudi, whereas the said appellant contends that Hindus
13/18
https://www.mhc.tn.gov.in/judis
W.A(MD)NOS.116 & 217 OF 2020
claim that the said property/pathway in R.Survey No.283/5 as a public
pathway, it has been maintained by the Panchayat.
23(b). This Court cannot express its view with regard to the
pendency of A.S.No.27 of 1991 against O.S.No.1249 of 1988, where, an
Advocate Commissioner was appointed to ascertain the existence of
pathway, the communication by the Athikkattuvilai President to the
Block Development Officer dated 04.05.2012 and the proceedings of the
Block Development Officer to the Tahsildar vide Na.Ka.A1/1134/12,
dated 04.05.2012, where it is stated that the survey No.283/5 is
maintained as ‘cement road’ assumes significance.
24. On the one hand, the Church claims that it is their property
stating that they are in possession pursuant to the sale deed. On the other
hand, the nature and character of the property as common passage and it
is maintained by the local Panchayat, which was confirmed by the Block
Development Officer by intimating the same to the Tahsildar as stated
supra. Thus, this Court is of the view that there is clear disputed factum
of possession, as both parties claim contra to each other and the said
14/18
https://www.mhc.tn.gov.in/judis
W.A(MD)NOS.116 & 217 OF 2020
dispute as to who is in possession cannot be gone into in the Writ
Petition and moreover, a Civil Suit is also pending.
25. The Planning permission ought to have been obtained from the
competent authority and without a planning permission, there cannot be a
construction. If any construction is put up without the planning
permission from the competent authority, then the construction is illegal
and unauthorised construction.
26. The local authority was not made as a party-respondent in the
Writ Petitions. When the necessary party was not impleaded as
respondent in the Writ Petitions, it is fatal to the case and it suffers from
non-joinder of necessary party. Had the local authority was made as a
party-respondent, the real picture could have been placed before the
Court.
27. In view of the discussion in the previous paragraphs, this Court
pass the following orders in these two writ appeals:
1. W.A(MD)No.217 of 2020 filed by the State against
15/18
https://www.mhc.tn.gov.in/judis
W.A(MD)NOS.116 & 217 OF 2020
W.P(MD)No.10694 of 2014 filed by Devadhas stands
allowed. Consequently, the order dated 19.12.2018
made in W.P(MD)No.10694 of 2014 is set aside. No
Costs. Consequently, connected miscellaneous petition
is closed.
2. W.A(MD)No.116 of 2020 filed by Ponragavan who is
also the petitioner in W.P(MD)No.1185 of 2020 stands
allowed and modified to the extent that the order of
rejection passed by the learned Single Judge in closing
the application is set aside. In view of the order passed
in W.A(MD)No.116 of 2020, no separate order is
necessary in W.P(MD)No.1185 of 2020 and
accordingly, the same is disposed of. No Costs.
Consequently, connected miscellaneous petition is
closed.
[T.K.R.,J.] & [N.S.,J.]
10.01.2025
Index:Yes/No
Internet:Yes/No
apd
16/18
https://www.mhc.tn.gov.in/judis
W.A(MD)NOS.116 & 217 OF 2020
To
1.The Secretary,
Home Department,
Fort St.George, Chennai.
2.The District Collector,
Nagercoil, Kanyakumari.
3.The Revenue Divisional Officer,
Nagercoil, Kanyakumari.
4.The Superintendent of Police,
Kanyakumari.
5.The Inspector of Police,
Suchindram Police Station,
Suchindran, Kanyakumari.
17/18
https://www.mhc.tn.gov.in/judis
W.A(MD)NOS.116 & 217 OF 2020
RMT.TEEKAA RAMAN,J.
AND
N.SENTHILKUMAR, J.
apd
PRE-DELIVERY JUDGMENT MADE IN
W.A.(MD)Nos.116 & 217 of 2020
10.01.2025
https://www.mhc.tn.gov.in/judis
