BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15/12/2009
CORAM
THE HONOURABLE MR. HEMANT LAXMAN GOKHALE, CHIEF JUSTICE
AND
THE HONOURABLE MR. JUSTICE A. SELVAM
Writ Petition (MD)No.5787 of 2009
and
M.P.(MD)Nos.1 and 2 of 2009
Thoothukudi Nazareth Diocese,
Rep. by its Treasurer,
Samuel Selvaraj,
Caldwell Higher Secondary School
Campus, Beach Road,
Thoothukudi - 628 001. ...... Petitioner
Vs
1. Sri Pathirakaliamman Koil of
Hindu Nadar Uravinmurai,
Vembar - Subramaniapuram,
Vilathikulam Taluk,
Tuticorin District
represented by R. Ayyam Perumal
2. The Revenue Divisional Officer,
Kovilpatti, Tuticorin District.
3. State of Tamil Nadu,
rep. by Deputy Superintendent of Police,
Vilathikulam Taluk,
Tuticorin District.
4. The Sub Inspector of Police,
Soorangudi Police Station,
Vilathikulam Taluk,
Tuticorin District. ....... Respondents
Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorari to call for the records relating to the
proceedings No.A.3/34-2008 dated 24.12.2008 on the file of the second respondent
herein and to quash the same in so far as the petitioner is concerned.
!For Petitioner ... Mrs.Jessi Jeeva Priya
^For Respondents ... Mr.R. Janakiramulu for R-2 to R-4
Special Government Pleader
Mr.R.Vijayakumar for R-1
:ORDER
(Order of the Court was made by THE HON’BLE THE CHIEF JUSTICE)
Heard Mrs. Jessi Jeeva Priya, learned counsel for the petitioner in
support of this writ petition, Mr. R. Janakiramulu, learned Special Government
Pleader appearing for respondents 2 to 4 and Mr.R.Vijayakumar, learned counsel
appearing for the first respondent.
2. The petitioner is a Church situated in Vembar Village,
Vilathikulam Taluk, Tuticorin District. The first respondent is a Temple
situated in the same village, the second respondent is the Revenue Divisional
Officer, Kovilpatti in Tuticorin District, the third respondent is the Deputy
Superintendent of Police, Vilathikulam Taluk, Tuticorin District and the fourth
respondent is the Sub Inspector of Police, Soorangudi Police Station,
Vilathikulam Taluk, Tuticorin District. In this writ petition, the Petitioner
prays that the order passed by the second respondent / Revenue Divisional
Officer, Tuticorin District dated 24.12.2008 be quashed and set aside.
3. The short facts leading to this writ petition are as follows:-
The petitioner Church is claiming an access over a small pathway of
about 109 feet of length going from the Panchayat road in that village. The
first respondent / Temple is claiming the alleged pathway to be part of its
property in its own right. There have been several proceedings between the
parties with respect to this pathway all these years. To begin with, a suit in
O.S.No.55 of 1988 was filed way back in the year 1988 in the Court of District
Munsif, Kovilpatti, which ultimately was carried upto the High Court, leading to
the Judgment of this Court dated 05.11.1997 in S.A.No.277of 1993. The dispute in
that suit was in respect of the property described in the third schedule. The
learned Single Judge, who decided the Second Appeal, in paragraph 16 of the said
Judgment considered the evidence of P.W.1, who was examined as the Member of the
Committee of C.S.I. Church, who admitted that the Hindu Community of the village
are claiming the suit property and that the property lying to the South of the
Suit Property belonged to the Hindu Community. After referring to this evidence,
the learned Single Judge gave a finding as follows:-
“Therefore, from this admission, it is clear that the alleged
pathway also forms part of the land belonging to the Hindu Community”.
4. Mrs. Jessi Jeeva Priya, learned counsel appearing for the
petitioner brought to our notice the Report of the Commissioner, which was
placed in that proceedings. From that, it is clear that the pathway in question
lies to the South of the suit property, which was the property as described in
the third schedule and this is how the finding has been given by the learned
Single Judge. That finding of the learned Single Judge has remained undisturbed
all these years.
5. It is pertinent to note that subsequently, another Civil Suit in
O.S.No. 48 of 1999 on the file District Munsif cum Judicial Magistrate,
Vilathikulam was filed by the petitioner Church to restrain some members of the
Hindu Community from interfering with the peaceful enjoyment of the visitors of
the Church of the alleged pathway. The said suit was dismissed for default on
08.10.2003. The respondents therein filed a counter claim against the Petitioner
Church, seeking not to disturb their peaceful enjoyment of the pathway and that
counter claim was decreed by the same order.
6. After all these proceedings, the first respondent / Temple moved
for patta on that portion, which the petitioner Church is claiming to be a
pathway. The original authority granted the application made by the first
respondent / Temple. The petitioner carried the matter in Revision and the said
Revision was allowed. The first respondent / Temple carried the matter to the
High Court, which interfered with the order of the Revisional authority and sent
back the matter to Revenue Divisional Officer, who passed an order holding that
it is a pathway. As against the said order, the first respondent / Temple has
filed a Revision, which is pending before the District Revenue Officer,
Tuticorin District.
7. Thereafter it so happened, that during Christmas 2008, the first
respondent / Temple made a grievance that the Petitioner Church is trying to
encroach on the pathway and to illuminate the same. The first respondent /
Temple filed a writ petition before this Court in W.P.(MD)No.12186 of 2008, on
which a learned Single Judge passed an order on 22.12.2008, directing that the
Revenue Divisional Officer concerned shall look into the matter and do the
needful immediately as per law. Thereafter, the impugned order has been passed
on 24.12.2008, which permitted the petitioner Church to have an access through
the pathway, but directed that they should not illuminate the pathway in any
manner whatsoever. This is an interim order, pending the determination of the
first respondent / Temple’s claim for patta over that pathway.
8. Mrs. Jessi Jeeva Priya, learned counsel appearing for the
petitioner would submit that the Petitioner Church should be permitted to
illuminate the said pathway during this Christmas period, as against which the
learned counsel appearing for the first respondent / Temple pointed out that as
already held by this Court, the said pathway is part of the property of the
first respondent / Temple, though that submission is disputed by the learned
counsel appearing for the petitioner. It is also pointed out by the learned
counsel appearing for the first respondent that the Petitioner has an access to
the Church through the adjoining school property, which belongs to the Church
and for that also, he relies upon the finding given by the learned Single Judge
in S.A.No.277 of 1993 dated 05.11.1997. In paragraph 16 of the Judgment, the
learned Single Judge, in terms, held that the Petitioner Church has an access in
the front through which they can go to Periyasamypuram to reach the school and
enter through the back portion of the school. The Sketch produced before us
also shows that from the Church, there is access to the Periyasamypuram road
through the school which belongs to the Church.
9. On a query, the learned Special Government Pleader would submit
that looking into the controversies over these years and taking into
consideration the interest of both the parties, the order has been passed by the
second respondent / Revenue Divisional Officer, permitting the petitioner Church
to have access during the Christmas period though without permitting any
illumination, which would lead to create any right on the pathway and the said
order should not be disturbed. He would further submit that it is necessary to
maintain the law and order particularly during the Christmas period.
10. We have carefully considered the submissions of the learned
counsel for the petitioner, learned counsel for the contesting first respondent
/ Temple as well as the learned Special Government Pleader for respondents 2 to
4.
11. The fact remains that there is a clear finding of this Court in
S.A.No.277 of 1993 in favour of the first respondent / Temple. Yet, the
Petitioner Church is trying to canvass their claim over this pathway.
Considering this position, the second respondent / Revenue Divisional Officer
has passed an order, which will meet the ends of justice. The immediate
requirement is to permit the Petitioner Church during Christmas to have an
access through the pathway, but not to permit any illumination so as to lead to
claim any right over the pathway. In our view, the order of the second
respondent / Revenue Divisional Officer is just and proper and we find no reason
to interfere with the same. This writ petition is liable to be dismissed.
12. Mrs. Jessi Jeeva Priya, learned counsel appearing for the
petitioner makes a request that the proceedings which are pending before the
District Revenue Officer, Tuticorin District may be expedited. The said request
is a legitimate one.
13. Accordingly, this Writ Petition is dismissed. No costs.
Consequently, the connected M.P(MD)Nos.1 and 2 of 2009 are also dismissed. We
expect the District Revenue Officer, Tuticorin District to expedite and dispose
of the proceedings pending between the parties on merits and in accordance with
law at the earliest.
sd/-
To:
1. The Revenue Divisional Officer,
Kovilpatti, Tuticorin District.
2. The Deputy Superintendent of Police,
Vilathikulam Taluk,
Tuticorin District.
3. The Sub Inspector of Police,
Soorangudi Police Station,
Vilathikulam Taluk,
Tuticorin District.