IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.06.2022

CORAM :

THE HON’BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE

AND

THE HON’BLE MRS.JUSTICE N.MALA

  W.A.Nos.  126, 129, 199, 203,

64, 72 & 74 of 2022 W.A.No.126 of 2022:

1. The District Collector

Collectorate, Kancheepuram 631 501.

2. The Joint Commissioner

HR & CE Department

No.119, Uthamar Gandhi Salai     Nungambakkam, Chennai 600 034.

3. The Revenue Divisional Officer

Taluk Office Complex     GST Road, Tambaram     Chennai 600 045.

4. The Tahsildar

Taluk Office Building

Sholinganallur, Chennai 600 119.

5. The Assistant Director of Fisheries (Marine)

Kancheepuram District     No.2/601-A, East Coast Road

Neelangarai, Chennai 600 041.

6. The Assistant Commissioner of Police
Neelangarai, Chennai 600 041. Vs.	…	Appellants
S.Guhan	…	Respondent

W.A.No.129 of 2022:

1. The Secretary to Government of Tamil Nadu

Revenue Department

Fort St. George, Chennai 600 009.

2. The Secretary to Government of Tamil Nadu Animal Husbandry & Fisheries Department     Fort St. George, Chennai 600 009.
3. The Special Commissioner and Commissioner of Land Administration     Chepauk, Chennai 600 005.
4. The District Collector

Kancheepuram District

Collectorate, Kancheepuram 631 501.

5. The Assistant Director of Fisheries (Marine)

Kancheepuram District

No.2/601-A, East Coast Road

Neelangarai, Chennai 600 041.

6. The Commissioner HR & CE Department No.119, Uthamar Gandhi Salai
Nungambakkam, Chennai 600 034. Vs	.. Appelants
S.Sridhar	.. Respondent

W.A.No.199 of 2022:

1. The State of Tamil Nadu

Rep. by its Secretary

Animal Husbandry & Fisheries Department     Fort St. George, Chennai 600 009.

2. The Director of Fisheries DMS Complex, Teynampet     Chennai 600 006.
3. The Assistant Director of Fisheries (Marine)

Kancheepuram District     No.2/601-A, East Coast Road     Neelangarai, Chennai 600 041.

4. The District Collector

Kancheepuram District

Collectorate, Kancheepuram 631 501.

5. The Tahsildar

Sholinganallur, Chennai 600 019.

6. The Special Commissioner and Commissioner of Land Administration     Chepauk, Chennai 600 005.
7. The Deputy Commissioner of Police Adyar, Chennai 600 020.
8. The Commissioner

Hindu Religious and Charitable Endowments     No.119, Uthamar Gandhi Salai

Nungambakkam, Chennai 600 034.

Vs

S.Sridhar                      ..       Respondent

W.A.No.203 of 2022:

1. The State of Tamil Nadu

Rep. by the Secretary

Revenue Department

Fort St. George, Chennai 600 009.

2. The Secretary to Government of Tamil Nadu Animal Husbandry & Fisheries Department     Fort St. George, Chennai 600 009.
3. The Commissioner

Hindu Religious and Charitable Endowments     No.119, Uthamar Gandhi Salai     Nungambakkam, Chennai 600 034.

4. The District Collector

Kancheepuram District

Collectorate, Kancheepuram 631 501.

5. The Revenue Divisional Officer

Taluk Office Building     GST Road, Tambaram     Chennai 600 045.

6. The Tahsildar

Taluk Office Complex

Sholinganallur, Chennai 600 019.

7. The Assistant Director of Fisheries (Marine)

Kancheepuram District     No.2/601-A, East Coast Road     Neelangarai, Chennai 600 041.

8. The Assistant Commissioner of Police

Neelangarai, Chennai 600 041.               .. Appellants

Vs

C.Maran                      ..     Respondents

W.A.No.64 of 2022:

1. The District Collector

Salem District

First Agraharam, Salem 636 001.

2. The Sub Collector Bhavani Road, Mettur Dam     Salem District 636 401.
3. The Tahsildar

Omalur Taluk     No.5, Omalur Main Road     Omalur, Salem 636 455.

4. The Commissioner of Land Administration Land Administration Department     Ezhilagam, Chepauk, Chennai 600 005.
5. The Secretary to Government of Tamil Nadu

Revenue Department

Fort St. George, Chennai 600 009. .. Appellants Vs

1. Arulmigu Kottaimariamman Thirukoil

Rep. by its Hereditary Trustee, R.Ramakrishnan     Omalur Village and Taluk     Salem District.

2. The Joint Commissioner

Hindu Religious and Charitable Endowments Department     Near old Bus Stand, Salem 636 001.

3. The Commissioner

Hindu Religious and Charitable Endowments Department

119, Nungambakkam High Road

Chennai 600 034.                      ..     Respondents

W.A.No.72 of 2022:

1. The District Collector

Salem District

Fort, Salem District 636 001.

2. The Revenue Divisional Officer (In Charge) Bhavani Road, Mettur Dam     Mettur 636 401.
3. The Tahsildar

Omalur Taluk

Mettur Main Road     Omalur, Salem 636 455.

4. The Commissioner of Land Administration Land Administration Department     Ezhilagam, chepauk, Chennai 600 005.
5. The Secretary to Government of Tamil Nadu

Revenue Department

Fort St. George, Secretariat     Chennai 600 009. .. Appellants

Vs

1. Arulmigu Kottaimariamman Thirukoil

Rep. by its Hereditary Trustee, R.Ramakrishnan     Omalur Village and Taluk     Salem District.

2. The Joint Commissioner

Hindu Religious and Charitable Endowments Department     Near old Bus Stand, Salem 636 001.

3. Regional Transport Officer

VOC Nagar, Pachanampatti Post

Omalur, Salem 636 455.                      ..     Respondents

W.A.No.74 of 2022:

1. The Secretary to Government Revenue Department

Secretariat, Chennai 600 009.

2. The Secretary to Government

Highways & Minor Ports Department     Secretariat, Chennai 600 009.

3. The Secretary to Government

Tourism, Culture & Endowments Department     Secretariat, Chennai 600 009.

4. The Commissioner of Land Administration Chepauk, Chennai 600 005.
5. The Director General

Highways Department     76, Sardarpatel Road     Guindy, Chennai 600 025.

6. The Chief Engineer (Project) Highways Department     Saidapet, Chennai 600 015.
7. The District Collector Salem District.
8. The District Revenue Officer

Salem District.                      ..         Appellants

Vs

1. Radhakrishnan
2. The Commissioner

Hindu Religious and Charitable endowments Department     119, Nungambakkam Road     Chennai 600 034.

3. The Joint Commissioner

Hindu Religious and Charitable endowments Department     Arilmigu kottaimariamman Temple Campus     Salem  636 001.

4. The Hereditary Trustee

Arilmigu kottaimariamman Temple     Omalur Town and Taluk, Salem District.

5. The Executive Officer

Arilmigu kottaimariamman Temple

Omalur Town and Taluk, Salem District.                      ..     Respondents

Prayer in W.A.No.126 of 2022: Appeal filed under Clause 15 of the Letters Patent against the order dated 04.11.2020 in W.P.No.33667 of 2013.

Prayer in W.A.No.129 of 2022: Appeal filed under Clause 15 of the Letters Patent against the order dated 04.11.2020 in W.P.No.19258 of 2013.

Prayer in W.A.No.199 of 2022: Appeal filed under Clause 15 of the Letters Patent against the order dated 04.11.2020 in W.P.No.17248 of 2013.

Prayer in W.A.No.203 of 2022: Appeal filed under Clause 15 of the Letters Patent against the order dated 04.11.2020 in W.P.No.32091 of 2013.

Prayer in W.A.No.64 of 2022: Appeal filed under Clause 15 of the Letters Patent against the order dated 04.11.2020 in W.P.No.5159 of 2018.

Prayer in W.A.No.72 of 2022: Appeal filed under Clause 15 of the Letters Patent against the order dated 04.11.2020 in W.P.No.21712 of 2018.

Prayer in W.A.No.74 of 2022: Appeal filed under Clause 15 of the Letters Patent against the order dated 04.11.2020 in W.P.No.21654 of 2018.

For Appellants       : Mr.R.Shunmugasundaram

Advocate General

Assisted by Mr.Alagu Gowtham   Government Advocate   and A.G.Shakeena   for all the appellants in all WAs

For Respondents    : Mr.V.B.R.Menon

in W.A.No.126 of 2022   and for respondent 4   in W.A.No.74 of 2022

Ms.T.Kokilavane   for respondent 1 in

W.A.Nos.129, 64, 199 & 203 of 2022

Mr.N.R.R.Arun Natrajan

Special Government Pleader (HR & CE)   for respondents 2 & 3   in W.A.No.64 of 2022   and for respondent 2   in W.A.No.72 of 2022   and for respondents 2 & 3   in W.A.No.74 of 2022

JUDGMENT

(Delivered by the Hon’ble Chief Justice)

The batch of writ appeals has been preferred to challenge the order dated 04.11.2020, passed in two batches of writ petitions concerning two temples, namely, Sri Sakthi

Muthamman Temple, Neelankarai and Arulmighu

 

Kottaimariamman Thirukoil, Omalur, Salem District.  A challenge was made to (i) the Government Order in G.O.Ms.No.2871, Revenue Department, dated 27.09.1963 (for brevity, “G.O. dated 27.09.1963“), assigning the land of temple poramboke to the Fisheries Department;  and (ii) the order dated 28.03.2018 of the District Collector, Salem, transferring temple poramboke land in favour of the Regional Transport Officer, Salem. The writ petitions were allowed holding assignment of the land by G.O. dated 27.09.1963 and order dated 28.03.2018 to be illegal.

2. Brief facts of the case leading to the filing of the writ appeals are as follows: Sri Sakthi Muthamman temple is located in Survey No.82/1 of Neelankarai Village, Sholinganallur Taluk, measuring an extent of 2.03 acres. The said temple is being managed by a Temple Management Committee constituted by the residents of Chinna Neelankarai village and classified as “temple poramboke”, as indicated in the 1951 ‘A’ Register Extract and FMB sketch.   The vacant land around the temple was used by the villagers of Chinna Neelankarai for conducting temple festivals and providing temporary shelters to the village fishermen during natural calamities.  That being the case, vide G.O. dated 27.09.1963, land measuring to the extent of 2.03 acres in Survey No.82/1 was assigned and transferred to the Fisheries Department for construction of a building for installation of an Ice plant-cum-cold storage.
3. The challenge to the G.O. dated 27.09.1963, was made by maintaining the writ petitions of the year 2013, alleging that in the year 2013, the Fisheries Department has come to make a survey of the boundary. Prior to the aforesaid, the petitioners/non-appellants were not aware about the assignment of the land to the Fisheries Department by G.O. dated 27.09.1963. It is for the reason that the Government Order was not published in the Gazette so as to be within the knowledge of the public and otherwise, the land was not as such used by the Fisheries Department.
4. Arulmighu Kottaimariamman Thirukoil is situated in the land measuring to an extent of 2.57.5 hectares (6.56 acres) in

Survey No.143/1 of Omalur Village and Taluk, Salem District.

The temple is being administered by the Hereditary Trustee and Executive Officer under the HR & CE Department.  The said land is classified as “temple poramboke” as per the 1937 ‘A’ Register Extract [entry in Column No.12), FMB sketch and other revenue records.  The vacant land surrounding the temple was being used by devotees for conducting various temple festivals. While so, the District Collector, Salem, vide order dated

28.03.2018 transferred 1.15 acres of land in favour of the

Transport Department, Salem for construction of Regional

Transport Office after effecting sub-division of the land in Survey No.143/1 into three parts without the consent of the HR & CE Department.

5. The challenge to the order dated 28.03.2018 was made in W.P.No.21712 of 2018 alleging that the land was transferred without any approval from the Commissioner of Land Administration and without following due process of law.

Further, it was contended that the transfer was contrary to Rule 13 of the Revenue Standing Order No.26 and without the consent of the HR & CE Department and the Temple Management.

6. As the assignment of lands by virtue of both the orders was held to be illegal by the learned Single Judge, the present writ appeals have been filed.
7. The learned Advocate General submits that the order impugned herein has been rendered ignoring the nature of the land, where the temples were existing. The matter pertains to two temples, out of which one is having two acres of land, while the other temple is having 6.56 acres. Out of the aforesaid land, the temple was constructed in a very small part. In the first case, where the land is of two acres, the temple occupies only two cents of the land, whereas in other case where the land is of 6.56 acres, the temple existed at three places, apart from a tank. The land aforesaid was shown to be a government poramboke land and thus, was rightly assigned to the Fisheries Department, by G.O. dated 27.09.1963 and to the Transport Department vide order of the District Collector, Salem dated 28.03.2018.
8. It is submitted that considering the fact that the land in question qua the first temple was close to the coastal area and was appropriate for the use of the fishermen, a proper decision was taken by the Government to assign the land to the Fisheries Department by maintaining the right of the temple for the devotees. The right to enter into the Temple was maintained by issuing G.O. dated 27.09.1963 and thereby, the land in question was assigned to the Fisheries Department. In one case, the part of land was used to construct few buildings to be used by the Fisheries Department and, accordingly, after assignment of the land by G.O. dated 27.09.1963, it was used for the purpose it was assigned.
9. Learned Advocate General submitted that when the buildings were constructed by the Fisheries Department, may be, in the small part of the land, the cause of action arose for the petitioners/non-appellants, however the writ petitions were filed belatedly referring to the action to demarcate the land to the Fisheries Department.
10. Coming to the legal issues, it is submitted that precisely on three grounds interference was made in the G.O. dated 27.09.1963 by the learned Single Judge while allowing the writ petitions. The first ground was non-utilisation of the land said to have been assigned to the Fisheries Department. The second ground was non-publication of the Government

Order in the Gazette pursuant to the provisions of the Tamil Nadu General Clauses Act, 1891 (for brevity ‘Act of 1891’), and, lastly on the ground that the land in question was a Temple poramboke land and thus, could not have been assigned to the Fisheries Department. The three grounds raised and accepted by the learned Single Judge have been challenged by way of appeal.

11. Similarly, the order dated 28.03.2018 of the District Collector, Salem was set aside on the following grounds: (i) the transfer of land which has been in possession and enjoyment of the temple is arbitrary and illegal; (ii) the transfer of land to the Regional Transport Officer was in contravention of Rule 13 of the Revenue Standing Order No.26; and, (iii) the transfer cannot be effected without the consent of the HR & CE Department.
12. It is submitted that assignment of the land by the G.O. dated 27.09.1963 could not have been nullified on the ground that the temple was having possessory right by referring the record of the year 1951. In view of the above, the order of the learned Single Judge quashing the G.O. dated 27.09.1963, on that ground is to be set aside.
13. The second ground regarding non-publication of the Government Order in the Gazette is again nothing but misreading of the provisions of the Act of 1891. Referring to Section 21 of the Act of 1891, it is submitted that the publication of orders and notifications in the official gazette is required only when the Act or Rules are brought or it is otherwise required under an Act or Rules. The assignment of the land by Government Order does not require a publication in the Gazette and, therefore, if the Government Order under consideration was not published in the Gazette, it would not become illegal or ineffective. The interpretation of Section 21 of the Act of 1891 was not properly made by the learned Single Judge and therefore, the order on that ground is liable to be set aside.
14. Referring to the third ground taken by the petitioner/ non-appellant and accepted by learned Single Judge that the land is a Temple poramboke, it is submitted that the said finding runs counter to the entries in the Revenue Records. It is submitted that after issuance of the G.O. dated 27.09.1963 for assignment, the revenue record was showing land to be of Fisheries Department as well as that of the Temple. But ignoring the aforesaid, the Government Order of the year 1963 was quashed holding that the land in question was of Temple poramboke land and, therefore, it could not have been assigned to the Fisheries Department. It is submitted that even the Revenue Records of 1963 were showing the land in question to be a Government poramboke land in Columns 3 and 4 of the Revenue Records.  It is only in Column 12, the temple was mentioned but was not as temple poramboke land and therefore, as per the Revenue Records also, it was Government poramboke land and not temple poramboke to enable the temple to make a challenge to the assignment of the land by G.O. dated 27.09.1963. Ignoring the factual position on record, the impugned order has been passed by the learned Single Judge, thus, deserves to be set aside.
15. Qua the land belonging to Arulmighu Kottaimariamman Thirukoil, Omalur, Salem District is concerned, it is submitted by the Advocate General that the transfer of land by proceedings dated 28.3.2018 was incorporated in the village accounts on 24.4.2018 and even funds have been sanctioned for construction of building and, therefore, at this stage, such transfer cannot be questioned. He further submitted that the Managing Trustee of the said temple has given his no objection for transfer of land.
16. The appeals have been seriously contested by the petitioners/non-appellants. It is submitted that the assignment by the G.O. dated 27.09.1963, was for the sake of it and not for the purpose it was assigned to the Fisheries Department inasmuch as no reason was assigned for not using the land and moreover the land remained in the possession of the Temple throughout. The petitioners/non-appellants were unaware of the  assignment of the land by G.O. dated 27.09.1963 and it came to their notice only when the Fisheries Department came to demarcate the boundaries of the land assigned to it. The petitioners/non-appellants immediately challenged the Government Order aforesaid and finding that the land was never put to use by the Fisheries Department, other than a very small part, the learned Single Judge rightly caused interference in the G.O. dated 27.09.1963 on the ground that the land was in possession of the temple and based on its long possession, a right was existing in it and could not have been assigned to others.
17. Coming to the next question, it is submitted that a

Government Order is required to be published in the Gazette. An argument was raised that since the Government Order under challenge was not published in the Gazette, it was nullified or made ineffective by the learned Single Judge referring to the provisions of Act of 1891.  It is rightly held that the Government Order having not been published in the Gazette, it is not sustainable in law and would not confer any right on the Fisheries Department.

18. Referring to Section 21 of the Act of 1981, it is submitted by the petitioners/non-appellants that executive order of the State will come into effect only if it is notified or published in the official gazette and, therefore, the learned Single Judge was justified in holding that on account of nonpublication of the government order in the official gazette, it is not sustainable in law. The learned Single Judge has rightly recorded a finding in favour of the petitioners/non-appellants and against the respondents/appellants to hold that the G.O. dated 27.09.1963, would not have any effect and, accordingly, appropriate directions have been given in the concluding paragraph 22 of the order.
19. So as the third issue is concerned, it goes into the root of the case and it needs to be clarified in detail. It is submitted that Columns 3 and 4  of ‘A’ Register does not record the land to be of temple, Odai Poramboke. Columns 3 and 4 of the Revenue Records may refer it to be of Government.  It is only in Column 12 the use of the land is denoted and as to whether it is a Temple poramboke or any other poramboke land.

Referring to the ‘A’ Register of 1951, it is submitted that land in question was shown to be a Government poramboke land and in Column 12, it was referred to be of a Temple. Thus, it becomes Temple poramboke and thus, could not have been assigned to the Fisheries Department. The argument that if it is a Temple poramboke land, it should have been referred in

Columns 3 and 4 of the ‘A’  Register, is far from legal position. The land of a temple is not mentioned as a Temple poramboke in Columns 3 and 4 rather, it is always mentioned in Column 12 as such.

20. In view of the above, the learned Single Judge has rightly concluded that land in question was a Temple poramboke land, thus, could not have been assigned to the Fisheries Department. The land of temple remains under the HR&CE Department. The aforesaid would be clarified from the concluding directions in the judgment of the learned Single Judge and, therefore, the learned Single Judge has rightly quashed the G.O. dated 27.09.1963. The prayer is, accordingly, to uphold the order of the learned Single Judge.
21. Apropos the land in Survey No.143/1 of Omalur Village, Salem District is concerned, learned counsel for the petitioners/non-appellants reiterated their submissions made before the learned Single Judge to the effect that the appellants have neither sent any proposal nor got approval from the Commissioner as prescribed under law for reclassification.
22. At this stage, the learned Advocate General submitted that if this Court comes to the conclusion that the order of the learned Single Judge needs no interference, the prayer is to protect the right of the Commissioner, HR & CE Department under Section 34 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (for brevity ‘Act of 1959). The Commissioner has right to enter into long term lease of the lands belonging to the Temple though in consultation with the Government. The aforesaid clarification is required as a huge chunk of land is under the Temple and it is not being utilized. Thus, for better utilisation, liberty may be given to the

Commissioner to exercise his power under Section 34 of Act of 1959.

23. We have considered the rival submission of the parties

and perused the records.

24. The order of the learned Single Judge has been assailed by framing the three issues which are taken into consideration to examine the validity of the G.O. dated 27.09.1963, issued for assignment of land in question to the Fisheries Department. It was keeping in mind that the land in dispute exists close to the coastal area and fishermen reside nearby. For the benefit of the local fishermen, a decision was taken by the Government to assign the land to Fisheries Department and, accordingly, issued G.O. dated 27.09.1963. Therefore, the bona fide of the Government in issuing the G.O. cannot be doubted, but at the same time if any order is to be issued or G.O. has to be notified, it has to be in accordance to the provisions of the law.
25. In view of the above, the object behind assignment of

the land to the Fisheries Department was justified, but the fact

remains that the assignment made by the G.O. dated

27.09.1963, remains largely ineffective for the reason that the majority portion of the land so assigned to the Fisheries Department remain vacant and un-utilized.  In a small portion construction was raised, but it cannot be said to be significant so as to use the land for the purpose it was assigned.  For all the years, starting from the year 1963 till the year 2013, the land remained vacant and continued to be under the possession of the temple, other then a very small portion.  The possession of land under the temple was found even prior to the year 1951. The aforesaid was taken to be a ground to challenge the

G.O. dated 27.09.1963 and was accepted by the learned Single Judge.

26. The challenge to G.O. dated 27.09.1963 was made showing rights of the temple in land in question. The learned Single Judge found possession of land with the temple even prior to the year 1951.  A reference of ‘A’ Register was given to show column 12 wherein temple has been indicated.  Based on long possession and the judgment of the Apex Court, it was held that the land in question belongs to the temple, thus could not have been assigned by the impugned G.O.
27. The main ground raised by the petitioners/non- appellants was in reference to the Revenue Records showing the land in question to be of the Temple. According to the learned Advocate General and even if we go by the record Columns 3 and 4 of ‘A’ Register of 1951, shows it to be Government Poramboke land, but Column 12 indicates it to be of a Temple. It is only in 1963, the change in the revenue record was made maintaining Columns 3 and 4 showing it to be a Government poramboke, while in Column 12 addition of the Fisheries Department was made, but maintaining it for a Temple.
28. The question for our consideration is as to whether a land belonging to the Temple should be denoted and mentioned as Temple poramboke land in Columns 3 and 4 of the records or in Column 12.
29. According to the petitioners/non-appellants, the land of the Temple is shown to be a Government Poramboke land in Columns 3 and 4, while in Column 12, the reference of the Temple is given to show it to be a Temple poramboke land. The aforesaid has been seriously contested by the learned Advocate General by pursuing the appeal for challenging the impugned order of the learned Single Judge.  He submitted that if the land is of the Temple, it is to be mentioned as a Temple poramboke in Columns 3 and 4 and if at all it is shown to be a Government Poramboke in Columns 3 and 4, in Column 12 it should be shown to be Temple poramboke, which is missing in the record of 1951.  In Column 12 the land is shown to be of Temple and not of Temple poramboke.
30. The argument of the learned Advocate General cannot be accepted because the land under Temple remains to be a Government poramboke and the Commissioner of HR&CE

Department controls the affairs. In Column 12 of the ‘A’ Register, reference of temple is given.  The Record of 1951, produced before us, Column 12 shows the land in question to be of a Temple.  The alteration in the records was made in the year 1963 to add Fisheries Department in column.  Further, the issue regarding exclusive right on possession and enjoyment of temple poramboke land by the temple is no longer res integra. In this regard, reliance may be placed on the decision of the

Apex Court in the case of Subramanya Swamy Temple,

Ratnagiri v. V.Kanna Gounder (Dead) by LRs, (2009) 3 SCC 306.  Paragraphs (3), (5) and (10) are relevant and the same are quoted hereunder:

“3. The classification of 32 acres of land of Survey No. 370/1 was made as “Sri Subramanya Swamy Temple, poramboke”. The said classification of temple “poramboke” in the revenue record-of-rights indicates the reason for which it has been set apart as also its occupation and use. Temple poramboke consists of unassessed wasteland by the Temple. It may also include common passage, water ponds, thrashing floor, etc. etc.

….

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 M.S. Krishnan v. Govt. of T.N. [(2001) 2 LW 723

(Mad)] in the following terms : (LW p. 726, para 10) “10. … 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.”

….

10. The High Court, in its impugned judgment proceeded on the basis that there had been no assignment in favour of the Temple by the State. It committed an error in relation thereto. The paramount title of the State is not disputed. It remains vested in the State. The State, however, having regard to the possession of the appellant over 32 acres of land classified the same as “Temple poramboke”. It, by reason of the said classification, not only permitted the appellant to continue to possess the land but also granted a superior right, namely, to make constructions as also to grant lease thereof subject of course to the conditions laid down as noticed hereinbefore. The principle of possessory title was, thus, completely overlooked by the High Court.”

31. In view of the aforesaid and as we find the land in question remained under the possession of the temple, it was rightly taken to be a Temple poramboke land and therefore the G.O. could not have been issued to assign the land to the Fisheries Department, rather the Temple poramboke land can be utilized in the manner given under the Act, 1959 and Rule 13 of the Revenue Standing Order No.26. In the case on hand, the Commissioner, HR & CE Department, who is  having the general power of superintendence and control over all the temples has neither been consulted nor been involved in the decision making process.  It is not in dispute that by virtue of Section 34 of the Act, 1959, the Commissioner has been empowered to grant long lease of the temple property, but in consultation with the Government.
32. In view of the above, we find no error in the order of the learned Single Judge holding the land to be a Temple poramboke under the control of HR&CE Department and, therefore, the assignment of the said land by the G.O. dated 27.09.1963, to be illegal.
33. Here, we may deal with the other issues raised and decided by the learned Single Judge to nullify the G.O. dated

27.09.1963.  It is on the ground that Section 21 of the Act of 1891 has not been complied.  The G.O. has not been published in the Gazette, thus, could not be given effect to.  For our reference, Section 21 of the Act of 1891, is quoted hereunder:

“Section 21. Publication of Orders and

Notifications in the Official Gazette_ Where in any Act, or in any rule passed under any Act, it is directed that any order, notification or other matter shall be notified or published, such notification or publication shall, unless the Act otherwise provides, be deemed to be duly made if it is published in the Official Gazette.”

The provision of Section 21 does not require publication of G.O. for assignment of land in the Gazette in absence of any provision in the Act or the Rule to mandate it.  Publication of orders and notifications in the official gazette is required, only if the Act or any Rule contemplates such publication.

34. In view of the above, if the G.O. dated 27.09.1963,

was not published in the Gazette, it would not become illegal or ineffective.  However, the issue aforesaid is not going to affect the complexion of the order in view of the findings recorded hereinabove qua the third ground.

35. In the light of the aforesaid, the judgment of the learned Single Judge on challenge to O. dated 27.09.1963 calls for interference insofar non-publication of the G.O. in the Gazette.  However, the judgment is sustained on the basis of the findings recorded qua the other grounds that the land of temple poramboke could not have been assigned to the Fisheries Department in violation of the Act of 1959 and Rule 13 of the Revenue Standing Order No.26.
36. The outcome of the discussions made above would be to maintain the impugned order with regard to the challenge to the G.O. assigning land to the Fisheries Department ignoring it to be of a Temple poramboke and thus could not have been assigned by the G.O. in question. The directions given by the learned Single Judge in paragraph 22 are maintained with one addition that though interference in the G.O. dated 27.09.1963 has been made, it would not take away or curtail the right of the Commissioner, HR & CE, as contemplated under Section 34

of the Act of 1959.

37. For the same reasons as given hereinabove to the effect that the transfer of land to the Transport Department was in violation of the provisions of the Act of 1959 and Rule 13 of the Revenue Standing Order No.26, the order of learned Single Judge is not interfered with and the directions given by the learned Single Judge shall be forthwith given effect to. The Commissioner, HR & CE, would however be at liberty to exercise the power under Section 34 of the Act of 1959.
38. With the aforesaid, the writ appeals are disposed of.

Consequently, the Miscellaneous petitions in C.M.P.Nos.933,

936, 952, 954, 1514, 1531, 1533, 619, 664, 667, 668 & 670 of 2022 are closed.  No costs.

(M.N.B., CJ.)           (N.M., J.)

13.06.2022         

Index : Yes/No kk/drm

To

1. The District Collector

Collectorate, Kancheepuram 631 501.

2. The Joint Commissioner

HR & CE Department

No.119, Uthamar Gandhi Salai     Nungambakkam, Chennai 600 034.

3. The Revenue Divisional Officer

Taluk Office Complex     GST Road, Tambaram     Chennai 600 045.

4. The Tahsildar

Taluk Office Building

Sholinganallur, Chennai 600 119.

5. The Assistant Director of Fisheries (Marine)

Kancheepuram District     No.2/601-A, East Coast Road

Neelangarai, Chennai 600 041.

6. The Assistant Commissioner of Police Neelangarai, Chennai 600 041.
7. The Secretary to Government of Tamil Nadu Revenue Department

Fort St. George, Chennai 600 009.

8. The Secretary to Government of Tamil Nadu Animal Husbandry & Fisheries Department     Fort St. George, Chennai 600 009.
9. The Special Commissioner and Commissioner of Land Administration     Chepauk, Chennai 600 005.
10. The District Collector

Kancheepuram District

Collectorate, Kancheepuram 631 501.

11. The Commissioner

HR & CE Department

No.119, Uthamar Gandhi Salai       Nungambakkam, Chennai 600 034.

12. The Director of Fisheries DMS Complex, Teynampet       Chennai 600 006.
13. The Deputy Commissioner of Police Adyar, Chennai 600 020.
14. The District Collector

Salem District

First Agraharam, Salem 636 001.

15. The Sub Collector Bhavani Road, Mettur Dam       Salem District 636 401.
16. The Tahsildar

Omalur Taluk       No.5, Omalur Main Road       Omalur, Salem 636 455.

17. The Revenue Divisional Officer (In Charge) Bhavani Road, Mettur Dam       Mettur 636 401.
18. Regional Transport Officer

VOC Nagar, Pachanampatti Post       Omalur, Salem 636 455.

19. The Secretary to Government

Highways & Minor Ports Department       Secretariat, Chennai 600 009.

20. The Secretary to Government

Tourism, Culture & Endowments Department       Secretariat, Chennai 600 009.

21. The Director General

Highways Department       76, Sardarpatel Road

Guindy, Chennai 600 025.

 

22. The Chief Engineer (Project) Highways Department       Saidapet, Chennai 600 015.
23. The District Revenue Officer Salem District.
24. The Joint Commissioner

Hindu Religious and Charitable endowments Department       Arilmigu kottaimariamman Temple Campus       Salem  636 001.

THE HON’BLE CHIEF JUSTICE

AND             N.MALA, J.

kk/drm

 

  W.A.Nos.  126, 129, 199, 203,

64, 72 & 74 of 2022

 

13.06.2022