Water Body Encroachment: Plea In Madras High Court Alleges State Of Discriminating Against Temples During Demolition Drive

In a public interest litigation filed seeking directions to the state government for regularization and relocation of temples constructed on poramboke lands and water bodies, Madras High Court has asked the petitioner to file a detailed affidavit on how the current demolition drive for removal of encroachments have been religiously discriminatory.

The first bench of Acting Chief Justice Munishwar Nath Bhandari and Justice D. Bharatha Chakravarthy was hearing a PIL filed by T. Elango, one of the spokespersons for Hindu Munnani in Tamil Nadu. The petitioner submitted before the bench that the ongoing temple demolition drive by the State Government was motivated and not based on any transparent policy. The petitioner also sought a stay on the demolition drive by the state.

In the case of Union of India v. State of Gujarat (2018), the Supreme Court had directed the states and union territories not to entertain illegal religious constructions on public streets, public parks or other public places. It was directed that implementation of this order should be supervised by concerned High Courts.

J. Sai Deepak, the counsel appearing for T. Elango, heavily relied on this precedent to establish that the High Court should intervene and direct the state government to submit the policy it follows for the demolition of unauthorized religious structures.

He argued that more than two dozen temples have been demolished in the last two months according to news reports;  the State Government has also demolished a 40-year-old temple structure on the pretext that it was situated near a waterbody and a 1000-year-old temple in Thanjavur was also taken down.

There are two issues, namely, i) the compliance with the apex court order about framing the policy for dealing with illegal religious structures, and ii) the discriminatory nature of the ongoing demolition drive that targets temples alone, the counsel further added.

The bench initially opined that the petitioner should have approached the Supreme Court if there was a grievance that an apex court direction has been flouted by the state. It also added that the 2018 Supreme Court case pertained to the construction of religious structures by encroaching public spaces and public roads in Gujarat. The court also pointed out that the government notification challenged by the petitioner has been issued under Disaster Management Act, 2005. Encroachment of water bodies cannot be countenanced and such unauthorised use of lands give rise to floods every year in Tamil Nadu, hence the notification under the Act, the court added. 

Therefore, the current petition cannot be taken up as a PIL for issuing directions for all temples concerned. The matter of each temple can be taken up only in a piecemeal manner, the court added.

J. Sai Deepak responded that the 2018 direction given by the apex court was not limited to a particular High Court or a particular state and all matters pertaining to illegal religious constructions have been remitted to the respective High Courts to be supervised. The counsel also iterated that the petitioner's plea was to see the policy based on which the current demolition drive has been taking place. He argued that the notification issued was 'cryptic'.

He went on to argue further that the current demolition drive has been targeting the temples alone. He also pointed out an instance of a mosque illegally constructed in public land and argued that the government has been taking discriminatory actions fearing political backlash.

He also remarked that the temples constructed are not responsible for floods in the region which the court strongly disagreed with by saying that any unauthorised construction will have detrimental effects.

Madras High Court Issues Slew Of Directions To Remove Encroachments From Water Bodies

At this juncture, the court asked the petitioner's counsel to file an affidavit explaining the discriminatory nature of actions taken by the state government.

" In respect of any constructions, religious or otherwise, encroachment of water bodies will have to be removed as per our order. If it is seen that the water bodies have been encroached upon, we are not going to save you or any construction by any religion", the court clarified.

On another note, when Senior Counsel P.S Raman appearing for HR & CE Department began to make his submissions, the court pointed out that there has been an 'absolute failure' of HR & CE Commissioner in dealing with encroachments because of the mismanagement in the Department itself.

"A judgment was given by this court in 2014 acknowledging the illegal encroachments on temple land and asking the Department to fix rent... The majority of the temples are now in pathetic condition", the court remarked.

Senior Counsel submitted that the Department has a procedure for evicting the encroachers from temple lands. The ACJ then raised a question as to why action is being taken against encroachers alone and not the salaried department officials who have been 'hands in gloves with the encroachers'.

" ...From 2003, there have been 1300 encroachments of temple lands identified. No concrete action has been taken by the Department...Rampant encroachment won't happen if officers are not involved... Your officers have not taken any steps to prevent the encroachment. What have they been doing other than taking the salary and minting money? You can tell the Commissioner that he should be careful since we won't be liberal", the court censured the HR & CE Department.

When the court gave the petitioner a week's time to submit the affidavit on the conduct of the state government, Additional Advocate General J. Ravindran vehemently argued that the petitioner has been trying to portray a 'pseudo picture' of the state government by making such allegations. He also submitted that the court should see if the PIL is bonafide or not.

"If any discrimination on the grounds of religion is found in the matter of removal of encroachments, you will be in trouble...Reserve your arguments for later", the court told the AAG.

Case Title: T. Elango v. Union of India & Ors.

Case No: WP/2239/2022 (PIL)