Article 25 Does Not Protect Encroaching Roadside Shrines: Mandatory Removal Under Section 128 of the Tamil Nadu Urban Local Bodies Act

1. Introduction

The writ petition was filed by A. Sarath seeking a mandamus directing the Corporation of Greater Chennai (Commissioner and Zonal Officer) to act on his complaint dated 13.09.2025. The petitioner alleged that a “temporary structure” adjacent to his property entrance had effectively become a roadside shrine with a statue of Mother Mary/Mother Velankanni, allegedly obstructing his access and pedestrian movement, and involving an allegedly illegal electricity draw.

During proceedings, R. Daniel was impleaded as respondent (R3) on his claim that he and others had established and maintained the shrine since 1995, and that it had religious and community significance.

Core issues before the Court:

• Whether a long-standing religious structure on a public road/footpath can be protected from removal on grounds of faith, sentiment, or Article 25.
• Whether the Corporation is under a statutory duty to remove such encroachments under Section 128 of the Tamil Nadu Urban Local Bodies Act, and whether mandamus should issue to enforce that duty.
• Whether defences such as long duration, estoppel, selective targeting, or the “juristic entity” status of an idol can defeat removal of an encroachment on a public street.

2. Summary of the Judgment

The Court found, based on inspection and revenue records (including TSLR), that the shrine stood on Sarkar Poramboke land classified as a road/street and constituted an encroachment (noted as occupying about 8 sq.m. of the public road).

The Greater Chennai Corporation had already issued a notice dated 19.01.2026 to R3 under Section 128(1)(b) requiring removal within seven days. The Court held that:

• Religious character cannot legalise encroachment on a public road; Article 25 does not protect an illegal shrine on a footpath.
• Long existence (30 years) is no defence; each moment of encroachment gives a fresh cause to act.
• The statutory notice procedure under Section 128 was properly initiated and must be carried to conclusion.

The writ petition was allowed by directing respondents 1 and 2 to proceed “in full vigor” with Section 128(1)(b) and 128(2) proceedings, await R3’s response after notice expiry (27.01.2026), and ensure final orders and implementation on or before 10.02.2026. Allegations by R3 against the petitioner (perjury/illegal activities) were left open to be pursued separately.

3. Analysis

3.1 Precedents Cited

(a) Union of India Vs. State of Gujarat AIR Online 2009 SC 593

The Court relied on the principle that it is impermissible to first erect religious structures on public thoroughfares and later invoke religious feelings to resist removal. While the judgment does not reproduce the Supreme Court’s text, it treats the decision as authoritative against “sentiment-based” defences to encroachment removal. The precedent functions as a constitutional boundary-marker: public roads remain public, and religious installation cannot convert an illegality into a protected right.

(b) W.P. No. 46839 of 2019, dated 14-07-2020 (Karnataka High Court, Chief Justice Abhay Oka)

This passage was used to directly answer R3’s faith-based plea. The Madras High Court treated it as a persuasive articulation of a constitutional limitation: Article 25 protects religious freedom, not the location-choice to occupy public infrastructure. The quoted reasoning also introduces the “essential religious practice” lens—construction/maintenance of an unauthorised roadside structure is not essential to religion, hence not protected.

(c) Lavkush v. State of Uttar Pradesh [2016 SCC OnLine All 394] (Division Bench)

The Court described the Karnataka view as reflecting the Allahabad Division Bench’s approach in Lavkush. The reference strengthens the proposition that multiple High Courts converge on a consistent rule: public right of way and municipal governance override claims to preserve unauthorised religious structures. It buttresses the Madras High Court’s rejection of the Article 25 defence as neither novel nor jurisdiction-specific.

3.2 Legal Reasoning

(i) Determinative fact: “road” classification and encroachment finding

The judgment turns on objective classification in public records: the land was “Sarkar Poramboke classified as road” and confirmed through inspection and TSLR review. Once the site is found to be a public street/road, the legal consequences flow almost inexorably under Section 128.

(ii) Statutory duty under Section 128 outweighs discretionary tolerance

The Court framed Section 128 not as a discretionary power but as a duty to keep public streets and municipal lands free from encroachments. For immovable structures, it identified Section 128(1)(b) as the relevant provision, including the seven-day notice requirement. The notice dated 19.01.2026 was held compliant, and thus the Corporation was directed to complete the statutory sequence (including Section 128(2) stage).

(iii) Rejection of “long existence” as a legal defence; continuing wrong concept

A key doctrinal move is the Court’s statement that each moment an illegal structure remains on a public road provides a fresh cause of action to act. This treats the encroachment as a continuing wrong and defeats any argument akin to limitation-by-lapse-of-time or “regularisation by tolerance.”

(iv) Article 25 boundary: worship rights vs. occupation of public ways

The Court clearly separates freedom of religion from freedom to appropriate public space. It reiterates that roads have no religious character and that removal is justified “irrespective of the nature of the superstructure, whether it is religious or irreligious.” In effect, neutral, content-independent regulation applies: municipal law targets encroachment, not religion.

(v) Treatment of ancillary pleas: estoppel, selective action, juristic entity

• Estoppel/knowledge at purchase: The Court did not accept “you bought knowing it exists” as a bar, because encroachment removal is anchored in public rights and statutory obligations, not private bargains.
• Selective targeting (Vinayaka structure): The Court’s reasoning—roads lack religious character and any encroachment must go— implicitly answers selective enforcement arguments: they do not legitimise the present encroachment. (The judgment does not issue directions regarding other structures as they were not the subject of the complaint/proceedings.)
• “Idol is a juristic entity” and must be put on notice: The Court did not accept this as an impediment to municipal action under Section 128. Statutory notice was issued to the person maintaining/claiming responsibility (R3), and the decisive element remained the encroachment on a public road.

(vi) Limited scope: collateral allegations kept outside writ adjudication

The Court declined to adjudicate R3’s allegations of perjury and illegal activities by the petitioner, holding these issues unnecessary for deciding the municipal-encroachment question and preserving R3’s liberty to initiate independent proceedings. This reflects writ discipline: mandamus to enforce statutory duty is not converted into a roving inquiry into unrelated accusations.

3.3 Impact

• Reinforcement of a clear rule in encroachment-removal disputes: Faith or longevity cannot immunise unauthorised roadside shrines. Courts are likely to treat these as straightforward Section 128 matters once road-poramboke classification is established.
• Administrative accountability: By time-binding implementation (deadline 10.02.2026) and listing for compliance, the judgment signals that municipal bodies may be judicially supervised when inaction persists despite complaints.
• Discouraging “fait accompli” strategies: The continuing-wrong framing reduces incentives to erect structures and then rely on passage of time and sentiment to resist enforcement.
• Neutrality principle: The judgment’s statement that removal applies whether the structure is “religious or irreligious” can guide future cases to avoid religion-based exceptionalism and to apply uniform street-encroachment standards.

4. Complex Concepts Simplified

• Mandamus: A High Court direction compelling a public authority to perform a legal duty. Here, it compels the Corporation to act on encroachment removal duties under Section 128.
• Article 25 (Freedom of Religion): Protects religious beliefs and practice, but not the right to occupy any chosen public place (like footpaths/roads) for religious structures.
• Encroachment: Unauthorised occupation of public land (such as roads, streets, pavements). Even small constructions can qualify.
• Sarkar Poramboke (Road): Government land recorded for public use—here, specifically a road/street—over which private occupation is illegal.
• TSLR (Town Survey Land Record): Official survey record used to identify land classification and boundaries in urban areas.
• Continuing wrong / fresh cause of action: An illegality that persists day-to-day (like an ongoing encroachment) keeps generating grounds for enforcement; it does not become lawful merely by age.
• Juristic entity (idol): A legal concept where an idol/deity may be treated as a legal person in certain contexts. The judgment indicates this concept cannot be used to block statutory municipal action to clear a public road encroachment.

5. Conclusion

The Madras High Court’s decision in A.Sarath v. The Commissioner crystallises a practical and increasingly uniform rule: religious sentiment and long-standing presence do not legalise encroachments on public roads. Once land is shown (through inspection and records like TSLR) to be a public street/road, municipal authorities are bound by Section 128 to issue notice and remove the structure, and the High Court will enforce that duty through mandamus.

The judgment’s broader significance lies in its insistence on public-right-of-way integrity, its content-neutral approach (“religious or irreligious”), and its rejection of time-based defences—ensuring that urban governance obligations are not diluted by tolerance of illegality or appeals to communal sentiment.