S.Janet Baby v. The Executive Officer

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16.10.2019

CORAM:

THE HONOURABLE MR.JUSTICE M.GOVINDARAJ and WMP(MD)Nos.18518, 18523 and 18524 of 2019 S.Janet Baby ... Petitioner in WP(MD)Nos.21783 and 21786/2019 J.Wilson ... Petitioner in WP(MD)No.21787/2019 Vs.

1.The Executive Officer, Arulmigu Esakkiamman Thirukovil, Muppandhal (East), Aralvoimozhi Post - 629 301, Kanyakumari District.

2.Kottar Chettu Nainar Desiga Vinayagar Devasthanam Trust, Nagercoil, Kanyakumari District, through its present Secretary, V.Nagarajan ... Respondents in all W.Ps.

PRAYER: Writ Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records relating to the impugned proceedings dated 26.09.2019 passed by the 1st respondent and quash the same as illegal.

For Petitioners : Mr.M.P.Senthil For R1 : Mrs.J.Padmavathi Devi Special Government Pleader in all the writ petitions.

COMMON ORDER Mrs.J.Padmavathi Devi, learned Special Government Pleader takes notice on behalf of the first respondent. In view of the nature of order going to be passed hereunder, no notice is required to be sent to the second respondent. 1/3

2.The notice issued by the Executive Officer of Arulmigu Esakkiamman Thirukovil, Muppandhal, to the petitioners are under challenge in these writ petitions.

3.According to the petitioners, the Hon'ble Division Bench of this Court in a Public Interest Litigation in WP(MD)No.8885 of 2012, dated 03.10.2016, issued a direction to the District Collector, Kanyakumari to hold an enquiry after notice to all concerned and pass orders in accordance with law, in case, it is found that it is such encroachment on tank. On the other hand, the Executive Officer, without conducting any enquiry as to whether there is encroachment on land, lest, on a water body, on his own, presumed that it is a water body and that the petitioners have encroached it, issued notice. Therefore, according to the petitioners, the impugned notice is violative of the orders passed by the Hon'ble Division Bench of this Court and in violation of the principles of natural justice.

Therefore, the decision taken by the Executive Officer is liable to be set aside. 4.The learned Special Government Pleader appearing on behalf of the first respondent would submit that the Executive Officer can only submit a report to the Assistant Commissioner and in turn, the Assistant Commissioner shall make an application to the Joint Commissioner for initiating eviction proceedings. 5.Considering the above submission, this Court can infer that the Executive Officer is not empowered to issue notice directly to the petitioners and he has to follow the procedures contemplated under Section 78 of The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Under such circumstances, the impugned notice issued by the first respondent dated 26.09.

2019 is without jurisdiction and accordingly, the same is set aside and the Executive Officer/first respondent herein is directed to submit a report to the Assistant Commissioner, who, in turn, file an application to the Joint Commissioner for initiating eviction proceedings. The petitioners are entitled to raise all their objections before the Joint Commissioner, when procedure under Section 78 of the HR & CE Act, is initiated.

6.The writ petitions are disposed of with the above directions. No costs. Consequently, WMP(MD)Nos.18518, 18523 and 18524 of 2019 are closed.

Sd/- Assistant Registrar (AD I) // True Copy // Sub Assistant Registrar(CS) 2/3

mj To The Executive Officer, Arulmigu Esakkiamman Thirukovil, Muppandhal (East), Aralvoimozhi Post - 629 301, Kanyakumari District.

+2 CC to M/s.M.P.SENTHIL, Advocate ( SR-92607,92609[F] dated 17/10/2019 ) 16.10.2019 KM/(24.10.2019) 3P 4C 3/3