IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 10..6..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W.A.Nos. 190 and 191 of 2008 and W.P. No. 19973 of 2007 and M.P. Nos. 1 & 1 of 2008 in W.A. Nos. 190 & 191 of 2008 and M.P. No. 1 of 2007 in W.P. No. 19973 of 2007 Federation of Chennai Suburban (South) Welfare Association Rep. by its General Secretary Velayudan Pillai Plot No. 37, 3rd Street, Sheela Nagar Puzhudhivakkam Chennai .. Appellant in both W.As. & Petitioner in W.P. vs. 1. Muslim Cultural Association Rep. by its Secretary Mr. S. Asmathullah Hussainy 15 Manimegalai Street Madipakkam Madras – 9 .. RR1 in W.As. & R5 in W.P.19973/07, 190 and 191/08 2. The State of Tamil Nadu Rep. by its Secretary Revenue Department Fort St. George Chennai .. R2 in W.A. & R1 in W.P.19973/07, 190/08 3. The District Collector Kancheepuram District Kancheepuram .. R3 & R2 in W.A. & W.P. 19973/07 R3 W.A.190/08, R2 in W.A.191/08 W.P.19973/07 https://hcservices.ecourts.gov.in/hcservices/ 4. The Sub-Collector Saidapet Chennai .. R4 in W.A. No. 190 of 2008 W.A.190/08 5. The Deputy Superintendent of Police Madipakkam Madras .. R5 in W.A. No.190 of 2008 6. The Executive Officer Ullagaram Puzhudhivakkam Town Panchayat Tambaram Taluk Kancheepuram District .. R3 in W.A. No. 191 of 2008 & R2 in W.P. 7. The Tahsildar Tambaram Kancheepuram .. R4 in W.P.19973/07 Appeals filed under Clause 15 of the Letters Patent against the order of the learned single Judge dated 07.3.2007 made in W.P. Nos. 12261 of 1997 and 6264 of 2000. W.P.No.12261/97 :- Petition filed under Article 226 of Constitution of India seeking writ of certiorarified mandamus calling for the records of the respondents in R.C.No.6661/95 A4 dated 1.9.95 and consequential proceedings dated 6.3.1996 and quash the same and direct the respondent herein to permit the petitioner association to construct the mosque at S.No.79/2 Ullagaram, Puzhuthivakkam Panchayat, Chengalpet District. W.P.6264/2000:- Petition filed under Article 226 of Constitution of India seeking writ of mandamus directing the respondents herein to remove the illegal and unauthorised compound wall constructed by the 2nd respondent in the petitioner property situated at No.79/2 Ullaharam Village, Puzhudhivakkam, Ullagaram Panchayat, Kancheepuram District. Petition filed under Article 226 of the Constitution of India seeking for a writ of Declaration declaring that G.O. Ms. 1298/Rev. (L) Department dated 24.9.1986 is null and void, ultra vires and illegal. For Appellant : M/s Anand, Samy and Dhruva For Respondents : Mr. Manoharan https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT K. CHANDRU, J. Heard the arguments of M/s Anand, Samy and Dhruva, learned counsel appearing for the appellants and Mr. Manoharan, learned Government Advocate representing the official respondents and perused the records. 2. W.P. 19973 of 2007 is filed by the petitioner Association seeking for a declaration that G.O. Ms. 1298 Revenue (L) Department dated 24.9.1986 as null and void. When this writ petition came up as a Public Interest Litigation, time was sought for by the petitioner to challenge the common order passed by the learned single Judge dated 07.3.2007 made in W.P. Nos. 6264 of 2000 and 12261 of 2000 as a third party. The said permission to challenge as a third party was granted by this Court on 03.12.2007. Hence, the Writ Appeal Nos. 190 and 191 of 2007 were directed to be posted along with the other writ petition. 3. The delay of 20 years in challenging G.O. Ms. No. 1298 has not been satisfactorily explained by the petitioner Association though its members were very much aware of its existence over the last two decades. The petitioner Association was registered as a Society with Registration No. 32/97 on 22.01.1997 only, i.e., after ten years of issuance of the said G.O. And also, there is no averment in the affidavit as to what action was taken by any of its members either in their individual capacity or in a representative capacity during the last 20 years. Therefore, the said writ petition is liable to be dismissed solely on the ground of delay and laches. 4. Since the writ appeals were directed against the order passed by the single Judge giving direction to enforce the G.O., it is necessary to refer to the circumstances that lead to passing of the G.O. By the said G.O. dated 24.9.1986, the first respondent State, accepting the recommendations made by the Commissioner for Land Administration vide his letter dated 23.12.1981 and in terms of the Revenue Standing Order 24 A (10), directed that an extent of 0.27 acres of Kulam (pond) poromboke comprised in Survey No. 79 Ullagaram Village, Saidapet Taluk to be modified as a Mosque poromboke and transfer the same to the fifth respondent for construction of a Mosque without any land cost as per the conditions stipulated in the Revenue Standing Orders. It was stipulated that if no such Mosque was constructed within a period of two years, the land may be resumed by the Government. The District Collector, Chengalpet was also directed to publish the said order in the Government Gazette granting exemption for the said land from being under the control of the Panchayat. https://hcservices.ecourts.gov.in/hcservices/ 5. At this juncture, a writ petition was filed by one Martin before this Court in W.P. No. 19168 of 1994 seeking for a direction to the Revenue Divisional Officer (RDO), Saidapet to pass final orders in the proceedings pending before him vide his communication 06.8.1987. By the said proceedings, the RDO, Saidapet was proposing to conduct a meeting with reference to objections raised regarding the construction of a Mosque in Survey No. 79. This Court, by its order dated 21.4.1995 directed the RDO to complete the proceedings within a period of eight weeks. 6. In the meantime, one D. Kannan, claiming to be the President of Hindu Munnani and a resident of Nanganallur, filed a writ petition (being W.P. No. 605 of 1995) challenging the very same G.O. Ms. No. 1298 Revenue dated 24.9.1986 and for declaring that it has become infructuous and unenforceable. The said writ petition was dismissed for non-prosecution by this Court vide order dated 16.12.1999. It was claimed in that writ petition that allotment of grant of land free of cost to a particular community that too, for a particular religious purpose, was against the preamble of the Constitution and that the land can be used for constructing any building for Government purpose. Since pursuant to the said allotment, no building was constructed, the Government should resume the said land. 7. It was thereafter, taking advantage of the order dated 21.4.1995, the RDO, Saidapet, convened a meeting of several groups on the plea that there has been a law and order situation. A minutes of the meeting was recorded by the RDO, Saidapet vide his proceedings dated 01.9.1995 stating that both sides will nominate one representative and that they will sit in the Ullagaram Town Panchayat Office and inform their decision to the RDO on or before 04.9.1995. Subsequently, the RDO found that there was no meeting further extended the time for submitting their decision. 8. During these parleys, the Executive Officer of the Town Panchayat, Ullagaram – Puzhuthivakkam Town Panchayat stated that the Town Panchayat had decided to build a Wedding Hall and also a Water Tank. Challenging the proceedings of the RDO dated 01.09.1995, the fifth respondent (Muslim Cultural Association) filed a writ petition being W.P. No. 12261 of 1997 to permit them to construct the Mosque in Survey No. 79/2. 9. In W.P. No. 6264 of 2000, they sought for a direction to the official respondents to remove the unauthorised compound wall constructed by the Executive Officer, Ullagaram – Puzhuthivakkam Town Panchayat in Survey No. 79/2. This Court clubbed both the writ petitions together and allowed the writ petitions by a common order dated 07.3.2005. In paragraph 12, it was directed as follows:- https://hcservices.ecourts.gov.in/hcservices/ "Therefore, the proceedings of the Sub Collector, Saidapet Division in R.C. No. 6661/95 A.4 dated 1.9.1995 stands quashed. The Collector, Kancheepuram District is directed to comply with the directions found in G.O. (Ms.) No. 1298 Revenue (L) Department dated 24.9.1986 within four weeks. The petitioner Association has every right to put up mosque over there as per the directions found in the aforesaid G.O. (Ms.) No. 1298 Revenue (L) Department dated 24.9.1986. The petitioner Association is directed to pay a sum of Rs. 1,88,808/- being the cost of construction of the compound wall made by the Ullagaram Town Panchayat to the said Panchayat within a period of four weeks. Both the writ petitions are ordered accordingly." It is these directions which were sought to be challenged in the writ appeals by the petitioner Association which is a third party to the proceedings. 10. The petitioner Association, shedding its communal angle and in continuation of the previous road blocks raised by some of its members earlier against the construction of a Mosque, suddenly has come up with an environmental angle in the matter of grant of land. The learned counsel for the petitioner Association raised the following contentions for consideration by this Court:- a. Whether the fifth respondent has legal right to seek for issue of writ of mandamus against a State for assignment of kuttai Poromboke. b. Whether a water source could be a subject matter of assignment? c. Whether the writ petitions in W.P. 6264/2000 and 12261/1997 are maintainable in law? 11. For retaining the land by the second respondent local body, the second respondent had supported the stand of the petitioner Association by filing a counter affidavit. It is seen from the records that the earlier Panchayat Board, by Resolution No. 3 dated 03.7.1978, resolved that there are more than 100 Muslim families in that area and for the purpose of prayer as they had to go to far away Alandur and by accepting their request, it decided to allot 25 cents of land from the common land on the west side of kuttai. At that time, no one had challenged the said resolution and it was also handed over to the fifth respondent Association on 29.01.1987 as per the Land Delivery Report maintained in the Taluk Office. After all these developments had taken place, certain communal elements tried to enter into the fray and in the guise of https://hcservices.ecourts.gov.in/hcservices/ creating law and order problem, tried to forestall the construction of Mosque in that site by resorting to various tactics and proceedings instituted by subterfuge. 12. Even when the litigation was pending, the Municipality had sought for the land for parking the Municipal vehicles and for extending the Municipal Office and without authority, it had started using the said land for parking their vehicles. After the Government passed the order in G.O. No. 1298 Revenue Department dated 24.9.1986 and possession was also already handed over, taking advantage of the objection raised by certain vested interest groups, the then Town Panchayat (now Grade III Municipality), without any authority, constructed a permanent compound wall and started utilising it for its own purpose. It is thereafter, they have passed a resolution requesting permission to use the land for its own purpose though such request was not available to them in law. They have also going back on the resolution dated 03.7.1978 passed by the predecessor Panchayat and raised a communal angle in allotting the land to the fifth respondent. They suddenly found that the community strength is so few and they need not have any Mosque in that area. 13. Whatever may be the contentions raised by the petitioner Association, the averments in paragraphs 17 and 18 in the counter affidavit of the second respondent will clearly disprove the stand taken by the petitioner Association and hence, the passages from those two paragraphs may be extracted below:- "17. It is submitted that in this connection the Tahsildar, Tambaram has been requested to inspect the site and ascertain and report the status of the land. The Tahsildar by its report dated 20.05.2007 has reported that the land bearing Survey No. 79/1 measuring 0.34.5 hectare as 'Kuttai' an survey No. 79/2 measuring 0.11.0 hectare allotted to the 5th Respondent Association for the construction of mosque, as if the land is vacant, but used by the Municipality. The report further stated that the Muslim population in the area is nearly 150 families. 18. It is submitted that the Panchayat Office was constructed during the year 1987 and the compound wall during the year 1996. The Ullagaram - Puzhuthivakkam Municipality is upgraded as a III Grade Municipality during the year 2004. The Municipality has now passed a resolution to the effect to that the land is required for the day-to- day activities of the Municipality and also for the future expansion. He also further reported that https://hcservices.ecourts.gov.in/hcservices/ the land was allotted to the Association during the year 1986...." 14. This averment made by the local body will make it clear that the site in question, is neither a water source nor being used for water storage. But, on the other hand, it is now being used as an extention of the Municipal Office and as a vehicle park with a compound wall built around it. The second respondent local body in constructing a compound wall and using it as an extention of Municipal Office, when the land was no longer available to them and had been divested of its possession by G.O. Ms. No. 1298 Revenue dated 24.9.1986, clearly shows its high-handed action not authorised by law. But with regard to the money spent by the local body, the learned Judge, by the order dated 07.3.2007, has directed the fifth respondent to compensate them by paying Rs.1,88,808/- towards cost of constructions of the compound wall; though such a direction is not clearly based on any legal right of the local body but as a measure of good will. 15. The learned counsel for the petitioner relied on the following judgments of this Court in support of his contention that the character of the water bodies cannot be altered and they must be continued to be kept as a water body or water source and such lands cannot be utilised for any other purpose. (a) R. Venkatesan and others v. The District Collector and others [W.P. No. 633 of 1998, disposed on 19.10.2004] (b) L. Krishnan v. State of Tamil Nadu and others [AIR 2005 Madras 311] (c) Y. Kihermoidheen v. Secretary to Government, Revenue Department, Chennai and others [2006 (1) M.L.J. 388] We are of the view that these judgments have no relevance to the issue on hand. 16. With reference to the character of the land, the same had already been altered by the order of the Government as noted already. Further, the earlier character of the land as a Kulam poromboke had lost its utility and because of that reason, the Municipality itself is now claiming to use the said land as an extension of its activities by putting a compound wall. This will clearly show that the said land has no utility value as a water source and this fact has been found so by the Government even as early as 1986 and the predecessor local body has given no objection for allotment of the said land. 17. Merely because the land is allotted for religious purpose, that will not change the secular character of the State and the religious right of each community has to be necessarily https://hcservices.ecourts.gov.in/hcservices/ recognised in the light of the religious freedom guaranteed under Article 25 of the Constitution. It is clear from the averments made by the petitioner Association that they are only a busy-body. Though the petitioner claims to have registered its Association in the year 1997, they had not done anything in furtherance of many of the averments found in the affidavit. But only when this Court gave a direction to the State to comply with its own order within a time frame, they have come forward to file the present writ petition and the writ appeals. 18. On the other hand, the learned Special Government Pleader, though appearing for the second respondent, on instructions, stated that the State had not filed any writ appeal against the order of the learned Judge dated 07.3.2007 and in so far as they were concerned, that order has become final. While passing the order in the year 1986 in re-classifying the land, necessary consultation with the local body and the Revenue authorities had already taken place and the question of reopening the issue at this stage does not arise. At that time, though the said G.O. was challenged by a pro-Hindu group, they allowed it to get it dismissed for default. Therefore, the argument that the G.O. has been issued without consulting the proper parties, has no substance. In fact, by various litigations and representations, the benefit of the G.O. could not be utilised by the fifth respondent Association. 19. After all, for constructing a place of worship for a minority community, the petitioner Association or its predecessor warriors need not be so sensitive. Kabir, a great Saint (1440- 1518) who combined in himself the best of Sufi an Bhakthi traditions, rendered a poem which had been beautifully translated by the great Indian Poet Rabindranath Tagore. The translated poem reads like this: "O servant, where dost thou seek me? O! I am beside thee I am neither in the temple nor in mosque; I am neither in Kaaba nor in Kailasa, Neither am I in rites and ceremonies. Nor in yoga and renunciation. If thou art a true seeker Thou shalt at once see me, Thou shalt meet me in a moment of time Kabir says, O Sadhu, God is the breath of all the breath, There is nothing but water at the holy bathing places, I know that they are useless, for I have bathed in them, The images are all lifeless, they cannot speak. https://hcservices.ecourts.gov.in/hcservices/ I know, for I have cried aloud to them. The Purana and the Koran are mere words; Lifting up the curtain, I have seen." 20. The great tradition of tolerance and non-discrimination of caste and creed preached by the great Savants of the earlier Bhakthi movement Lalleswari (1317 - 1372), a great Kashmiri woman Saint taught the direct path to realisation through intense love of the divine, renouncing attachment to worldly possessions called for rising above the dualities of Caste and creed wrote as follows:- "Shiva abides in all that is everywhere; Then do not discriminate Between a Hindu and a Mussalman. If thou art wise, know thyself; That is the true knowledge of the Lord. I renounced fraud, untruth, deceit; I taught my mind to see the One in all my fellowmen. How could I then discriminate Between man and man And not accept the food Offered to me by brother man?" 21. In this context, what is required is tolerance and respect for all communities. Echoing the preachings of the Bhakthi Movement in a recent judgment in Hinsa Virodhak Sangh v. Mirzapur Koti Kuresh Jamat and others [2008 AIR SCW 2117], the Supreme Court re-emphasised the need for possession of such qualities for every Indian citizen. Speaking for the Bench, M. Katju, J. had re-emphasised our constitutional values in the following passages found in paragraphs 45 and 46 of the judgment:- Para 45: "Since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tolerance and respect for all communities and sects. It was due to the wisdom of our founding fathers that we have a Constitution which is secular in character, and which caters to the tremendous diversity in our country. Para 46: Thus it is the Constitution of India which is keeping us together despite all our tremendous diversity, because the Constitution gives equal respect to all communities, sects, lingual and ethnic groups, etc. in the country." 22. In the light of the above, we have no hesitation in rejecting the writ petition as well as the two writ appeals filed by the petitioner Association. Accordingly, they are dismissed. Consequently, Miscellaneous Petitions are closed. Though this is https://hcservices.ecourts.gov.in/hcservices/ a fit case in ordering cost against the petitioner Association, we refrain from doing so on the special circumstances of the case. We direct the official respondents to comply with the order of the learned Judge within a period of eight weeks from the date of receipt of a copy of this order. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gri To 1. The Secretary to State of Tamilnadu Revenue Department Fort St. George, Chennai 2. The District Collector Kancheepuram District Kancheepuram 3. The Sub-Collector Saidapet, Chennai 4. The Deputy Superintendent of Police Madipakkam, Madras 5. The Executive Officer Ullagaram Puzhudhivakkam Town Panchayat Tambaram Taluk Kancheepuram District 6. The Tahsildar Tambaram, Kancheepuram 1 cc to Government Pleader, Sr. 28029 W.A. 190 and 191 of 2008 & W.P. No.19973 of 2007 KJ (CO) kk 24/6 https://hcservices.ecourts.gov.in/hcservices/