Read Judgment: Arulmighu Palapattarai vs. Pappayee & Others 

Pankaj Bajpai

Chennai, March 28, 2022: The Madras High Court has stated that whoever commits an illegal act of encroaching upon a public street, even if it is a temple, should be prevented from undertaking such an illegal act, and hence, if any structure is put up in the public street and thereby, the access to the public in using the street is restricted or prevented, such a structure has to be removed immediately. 

The Single Judge N. Anand Venkatesh observed that Courts cannot be hoodwinked by encroaching and constructing a temple in the name of God. 

Going by the background of the case, the first & second respondents/plaintiffs filed a suit seeking for the relief of permanent injunction against the first defendant and to restrain him from interfering with the usage of the suit property by putting up any structure or barricade and thereby, prevent the ingress and egress to the property belonging to the plaintiffs. The plaintiffs also sought for the relief of mandatory injunction to restore the suit AB portion to its original position.

The case of the plaintiffs is that they became entitled to the properties on the demise of their mother and the portion shown as AB in the rough plan is classified as a public street in the revenue records vested with the Municipality (second defendant). The further case of the plaintiffs is that for all the tenements, their only access is from Mariamman Koil Street and therefore, it will not be open to anyone to prevent the user or cause obstruction to the ingress and egress from any point in this street. 

The grievance of the plaintiffs is that the Temple (first defendant) was making arrangements to put up a barricade in order to raise a structure in the place that has been earmarked as a public street. According to the plaintiffs, if the same is done, it will virtually block the ingress and egress to the property belonging to the plaintiffs. Opposing the same, it was contended that the first defendant was putting up construction in the place belonging to them and the plaintiffs do not have any right to question the same. 

The trial Court after analysing the oral and documentary evidence, dismissed the suit observing that there was no evidence to show that the general public was using the subject suit property is a public street. The lower Appellate Court set aside the decree of the trial Court, observing that whoever is affected in using the street from among the general public, will have the right to approach the Court to remove the encroachment/ obstruction put up in the public street. 

After considering the submissions, Justice Venkatesh said that it is quite unfortunate that the Municipality virtually attempted to wash off their hands by blindly supporting a flagrant encroachment made by the Temple, probably due to some official who was handling the case wrongly understanding the term “God Fearing”. 

The lower Appellate Court rightly held that a technical plea of not making ‘the government’ a party to the suit, will not in any way justify the act of the temple in encroaching upon a public street and putting up a construction, and such hyper-technical plea will not come to the aid of the temple/defendant who had committed a public wrong by encroaching upon a street which was used by the general public, added the Single Judge. 

Justice Venkatesh highlighted that even assuming that the plaintiffs have an 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. 

This Court in K.Sudarsan and others vs. The Commissioner, Corporation of Madras and others, AIR 1984 MADRAS 292, held that the owner of the property adjacent to a public street has got the right to access to such street at any point at which his property actually touches the street, added the Single Judge.

The High Court therefore directed the temple to remove the entire construction put up in S.No.42, within a period of two months from the date of receipt of copy of this order.

0 CommentsClose Comments

Leave a comment