Writ Petition filed under Article 226 of the Constitution of India praying for issue of Writ of Certiorari calling for the records of the impugned order of eviction vide Na.Ka.29369/2014.Aa3 dated 19.01.2017 issued by the District Collector, Kancheepuram and District, the first respondent against the petitioner's land and superstructure of thatched roof extent about 0.01.0 Ares vide Survey No. 219/4 situated in at No. 18, 1st street, Kizlkaranai village, Kattudevathur village, Madurandhagam Taluk, Kancheepuram District and quash the same.
Sanjay Kishan Kaul, C.J:— The petitioner seeks to assail the proceedings of the District Collector, Kancheepuram/respondent No. 1, dated 19.01.2017 dismissing the appeal of the petitioner and others filed under Section 10 of the Tamil Nadu Land Encroachment Act, 1905 (hereinafter referred to as “the said Act”) qua the action being taken for removal of the encroachments in S. No. 219/4 being the temple poramboke land.
2. The position which emerges from the impugned order is that the encroachments are by the following persons:—
Sl. No.Survey No.ClassificationName of the EncroachmentsCondition of the EncroachmentExtent of Encroachment in the Metric Measurement in Hectare1.219/1
219/4Pond
Temple PorambokeSelvam S/o VeerasamyCement Roof and Cement Sheet House0.02.52.219/1
219/4Pond
Temple PorambokeLogu S/o VeerasamyCement Roofed House0.02.03.219/1Pond PorambokeSivamani S/o Veerasamysmall Water Tank Roof House0.01.54.219/4Temple PorambokeVeerasamy S/o DuraisamyRoof House0.01.55.219/4Temple PorambokeUmapathi S/o VeerasamyRoof House Thatched Roof0.03.56.219/4Temple PorambokeAdi-Diravidar Welfare Kinder Garden Elementary School, Kitchen (2) Panchayat High Drinking Water Tap and Ettiyamman TempleCement Roofed Building0.12.07.219/4Temple PorambokeSambath Reddiyar S/o VenkatesanTiled Roof0.01.08.219/4Temple PorambokePadmanabhan S/o RangasamyTiled Roof0.01.09.219/4Temple PorambokePerumal S/o MariyappanThatched Roof0.01.010.219/1Tank PorambokeHarikrishnan S/o KoothanCement Roofed Toilet0.00.511.219/1Tank PorambokeNagammal W/o Late ChandranSheep Fence at present not in use0.01.012.219/1PanchayatHigh Level Roof Drinking Water Tank and Well0.05.0
3. The petitioner is at Serial No. 9.
4. The order goes on to record that except Serial Nos. 6, 11 and 12, the remaining 9 persons have actually made encroachments. Out of the remaining 9 persons, 5 were issued “B” Memos, while 4 were not issued “B” Memos, which includes the petitioner. Consequently, an eviction order has been issued.
5. We have heard the learned counsel for parties. Mr. V.B.R Menon, Advocate, who is present in Court, has also assisted us in this matter to determine the larger context.
6. The first thing which needs to be emphasized is that issuance of “B” Memo is only the recognition of the existence of the encroachment and penalty imposed for the same. It does not confer any patta right. Thus, it will be an encroachment. If “B” Memo has not been issued, it implies that penalty has not been paid.
7. There can be no dispute that any encroachment on the pond would be completely impermissible and not capable of any regularization in view of the Full Bench judgment of this Court in T.K Shanmugam, Secretary, C.P.I(M), North Chennai District Committee, 52, Cooks Road, Perambur, Chennai-11 v. The State of Tamil Nadu, rep. by its Secretary to Government, Department of Revenue, Fort St. George, Chennai-9, reported in 2015-5-L.W. 397. That leaves us with the temple poramboke land.
8. In the course of examining as to what is the temple poramboke land, it emerges that the land is earmarked for the temple to carry out various functions and temple festivals. As to how a temple poramboke land can be utilized is part of Rule 13 of the Revenue Standing Orders-26. In respect of the same, the relevant Government Orders are G.O.Ms No. 3333, Revenue, dated 25.08.1960 and G.O.Ms No. 3069, Revenue, dated 22.07.1961 and the Board Proceedings being B.P.Ms No. 135, dated 02.02.1961
9. Rule 13 of the Revenue Standing Orders-26, reads as under:—
“13. Temple Poramboke.- In order to safeguard the ownership of the State in temple porambokes all such porambokes should be azmoished every year. Purely temporary occupations connected with festivals or religious ceremonies are allowed and all other occupations should be treated as encroachments.”
(2) Occupations of the temple poramboke found to be in excess of the requirements of the temple may be permitted to be utilised not only for purpose of cultivation but also for purposes such as construction of houses, business premises, etc., which will augment the revenues of the temples. The temple porambokes so permitted will be sub-divided and transferred to Assessed Waste and assigned to the temple free of cost with a patta in its name and the temple (i.e, whoever manages the temple) might then lease out such lands for cultivation or other purposes and utilise the income for the temple purposes.
10. The above concession is granted subject to the following conditions:—
(i) The temple authorities before applying for the assignment of the porambokes found in excess of the requirements of the temple and worship should obtain the consent of the Hindu Religious and Charitable Endowment (Administration) Department.
(ii) Such lands should be granted for cultivation only if they are cultivable lands and if they are not cultivable, they should be put to other uses for the benefit of the temple.
(iii) The land should be used only for the purpose for which it is assigned.
(iv) A separate list of encroachments detected in the course of the fasli should be put up at Jamabandi before the Jamabandi Officer. The action taken to remove such encroachments other than those purely temporary ones, connected with festivals or religious ceremonies should be reviewed by the Collectors at the end of every fasli.”
11. Reading of the aforesaid shows that the temporary occupations connected with festivals or religious ceremonies are allowed and all other occupations should be treated as an encroachment. Not only that sub-clause (2) specifies that if there is an excess temple poramboke land, it may be permitted to be utilised not only for the purposes of cultivation, but also for purposes such as construction of houses, business premises, etc., “which will augment the revenues of the temple”. Thus, the occupation by any other third party is only for the augmentation of revenues of the temple and thus, we are of the view that issuance of “B” Memo in any case would have no effect in respect of the land in question, but only implies that penalty has been recovered by the Government.
12. Mr. V.B.R Menon, Advocate, present in Court also pointed out the judgment of the Hon'ble Supreme Court in Subramaniaswamy Temple, Ratnagiri v. V. Kanna Gounder (Dead) by LRs, reported in 2008 (3) Supreme 741 = (2009) 3 SCC 306, wherein G.O.Ms No. 3333, Revenue dated 25.08.1960 has been referred to in the context of classification of the temple poramboke land in the revenue records. The judgment recognizes that such a land consists of unassessed waste land by the temple and it may also include common passage, water ponds, thrashing floor etc. By such classification, the temple obtained full right to possession and exercise right to transfer of the lands and such a land does not cease to be a poramboke property, over which the Government will have control subject only to the rights of the temple. We may reproduce paragraphs 4 and 5 as under:—
“4. For the purpose of effectuating the aforementioned purpose, the Government of Madras issued G.O No. 3333 on or about 25.8.1960 permitting the temple to lease out the said lands for the purpose of augmenting its revenues subject of course to the conditions laid down therein, which are:
“1. The temple authorities before applying for assignment of the porambokes found in excess of the requirements of the temple and worship should obtain the consent of the H.R & C.E ADMN DEPARTMENT. Such lands should be granted for cultivation only if they are cultivable and only if they are not cultivable they should be to other uses for the benefit of the temple and the land should be used only for the purposes for which it is assigned.”
5. By reason of such classification, the appellant-temple obtained full right to possession and exercise right to transfer of the lands assigned in its favour. The right of the appellant to hold and possess the said land was noticed by a Bench of the Madras High Court in 2001 (2) Law Weekly 723 in the following terms:
“Such a land does not cease to be a poramboke property over which the Government will have control subject only to the rights of the temple.”
13. The learned Special Government Pleader has drawn our attention to the Division Bench judgment of this Court in Padmavathi v. The State of Tamilnadu, rep. by its Secretary, Education Dept., Madras (91 Law Weekly 80), where in paragraph 27, it has been observed that the Standing Orders will have the force of executive instructions and not legislative or statutory force.
14. We were constrained to look into the issue, as the learned Government Pleader sought to make the distinction between the cases where “B” Memos were issued as against one they were not issued, as per the finding in the impugned order. In our view, this would not really make a difference as per the aforesaid legal position. In the conspectus of the legal position as emerging before us, the District Collector, Kancheepuram would be required to re-examine the cases even where “B” Memo has been issued.
15. Insofar as the present case is concerned, we are informed that out of the total five cents occupied by the petitioner (4 cents patta land), the encroachment is to the extent of one cent. Since all are being treated alike and such an encroachment is impermissible in respect of the temple poramboke land, we cannot come to the aid of the petitioner. We, however, give one month's time to the petitioner to remove the encroachment.
16. The writ petition is dismissed. No costs. Consequently, W.M.P No. 3183 of 2017 is also dismissed.
17. The District Collector, Kancheepuram/respondent No. 1 to re-examine the issue and pass fresh orders in the conspectus of the aforesaid in respect of the lands where “B” Memos were issued within a period of one month of the receipt of the copy of this order.
18. We appreciate the assistance provided by Mr. V.B.R Menon, Advocate.