IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 04.04.2008 CORAM THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR. JUSTICE R.SUBBIAH W.P. NO. 3044 OF 2008 M. Subramanian .. Petitioner - Vs - 1. The District Collector Namakkal District Namakkal. 2. Namakkal Municipality rep. by its Commissioner Namakkal. 3. Arulmigu Palapattarai Mariamman Thirukoil, rep. by its Executive Officer, Namakkal. .. Respondent Writ Petition filed for the issuance of a writ of mandamus directing the 1st respondent herein to take appropriate suitable steps to remove the encroachment and construction put up by the 3rd respondent in T.S. No.42, Mariamman Koil Street, Ward 'B', Block 10, Namakkal within a reasonable time to be fixed by this Hon'ble Court. For Petitioner : Mr. T.Dhanyakumar For Respondents : Mr. D.Sreenivasan, AGP, for R-1 Mr. P.Srinivas for R-2 Ms. P.T.Asha for M/s.Sarvabhauman Associates for R-3 ORDER S.J.MUKHOPADHAYA, J. This writ petition, in public interest, has been preferred by the petitioner for directing the 1st respondent, District Collector, Namakkal District, to take steps for removal of encroachment and https://hcservices.ecourts.gov.in/hcservices/ construction put up by the 3rd respondent, Arulmigu Palapattarai Mariamman Thirukoil (hereinafter referred to as the 'temple') in T.S. No.42, Mariamman Koil Street, Ward 'B', Block 10, Namakkal. 2. Learned counsel for the petitioner submitted that the 3rd respondent attempted to encroach over the public street in survey No.42, Mariamman Koil Street, Ward 'B', Block 10, Namakkal when the temple property is situated in survey No.43, as if the 3rd respondent has got right over the public street. This was objected by the petitioner and several others and was brought to the notice of the 2nd respondent, who issued notice to the 3rd respondent u/s 182, 313 and 339 of the Tamil Nadu District Municipalities Act, 1920. In the said notice, the 2nd respondent called upon the 3rd respondent to stop construction work in the public street and further directed the 3rd respondent to remove the offending construction, but no action has been taken. 3. In the counter affidavit filed by the 1st respondent, District Collector, Namakkal District, certain facts have been admitted. With regard to the land in question, it is stated that the said land, S.No.42 is classified as Mariamman Temple Poramboke and is being used by temple authorities as also by public for their customary use of cooking Pongal for offering to the deity, Mariamman. Since the devotees will have to use the road in T.S. No.42, with a view from keeping the area neat for public usage, a portion was used for raising compound wall, which the writ petitioner has assumed as encroachment and struggling for its removal. According to the 3rd respondent, the petitioner is attempting to forum shop. Earlier, at the instance of the petitioner, a suit was filed by two persons, Papayee and Pavayee residing near the 3rd respondent temple, being suit O.S. No.683/05 on the file of the District Munsif's Court at Namakkal. The suit was filed against the temple and the Namakkal Municipality for an injunction to interdict the 3rd respondent temple from in any manner interfering with the usage of S. No.42 in Ward No.B of Namakkal Town, including putting up a barricade at point A upto B or otherwise to prevent their ingress and access to their property and therefrom to the Salem Main Road near A point and also for restoration of the suit land in AB portion to its original position by issuance of a mandatory injunction. It was their contention that the said Mariamman Koil Street was their only access is a Municipal Street classified as poramboke in the revenue record. After contest of the suit, learned District Munsif, by an elaborate order, by judgment and decree dated 31st Oct., 2007, dismissed the suit holding that the lands in S. No.42 belongs to the temple and the plaintiff therein had failed to prove that the suit land was poramboke land. The grievance of the 3rd respondent is that after the order of dismissal of the suit, the petitioner immediately filed a writ https://hcservices.ecourts.gov.in/hcservices/ petition, W.P. No.34613/07 before this Court on 4th Dec., 2007 for direction on the 2nd respondent herein (1st respondent in the earlier case) to take suitable action pursuant to notice dated 19th Dec., 2005. After argument, the said writ petition was dismissed without liberty on 1st Feb., 2008. Thereafter, the present second writ petition has been preferred for the same relief. 4. We have heard the learned counsel appearing for the parties and noticed the rival submissions. 5. In the present case, as we find that there is a disputed question of fact, whether land S. No.42 is a street poramboke or is a temple poramboke land, as stated by the District Collector, Namakkal, we are not inclined to decide the claim on merit. This apart, as we find that a suit has already been dismissed on the question and the petitioner earlier moved before this Court for similar relief and the writ petition was withdrawn without any liberty, we are neither inclined to grant any relief to the petitioner nor inclined to give any further liberty in the present case. There being no merits, the writ petition is dismissed. But there shall be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. GLN To 1. The District Collector Namakkal District Namakkal. 2. The Commissioner Namakkal Municipality Namakkal. + 1 CC to Mr.Sarabhauman Asso. Advocate SR NO.19351 W.P. NO. 3044 OF 2008 SJI(CO) JJM(11/04/08) https://hcservices.ecourts.gov.in/hcservices/