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“Even if God encroaches upon public space, courts will direct removal of such encroachments stating that public interest and rule of law must be safeguarded and upheld by the courts,” observed Madras High Court.

The single judge bench of Justice N. Anand Venkatesh was extremely critical of the encroachment made by Arulmighu Palapattarai Mariamman Tirukoil (revered as a manifestation of Aadi Shakti) on the public street, known as Mariamman Koil Street and observed,

“We have reached a situation where even if GOD encroaches upon public space, Courts will direct removal of such encroachments, since public interest and rule of law must be safeguarded and upheld by Courts"

The bench was hearing the second appeal filed by the temple against the Lower Appellate Court judgment, which disallowed them from keeping construction in Mariamman Koli Street.

The present bench stated that, “There used to be a time when some individuals developed an impression that they can encroach upon a public space in the name of a temple or by planting an idol in that place.”

He further added that, “Courts cannot be hoodwinked by encroaching and constructing a temple in the name of God. We have enough temples and no God has made any request to construct new temples by encroaching upon public space or by raising a structure in the name of the temple.”

After looking at the reports submitted by Advocate Commissioner, the court expressed its disapproval about the temple proceeding with the construction despite a status quo order and, in fact, completing the construction.

The court was also critical on the conduct of the Municipality. As the Municipality had earlier sent a notice to the defendant temple to immediately stop the Encroachment that was being made on Public Street. But, later when the suit came to be filed, the Municipality stated that the Government was in control of the Mariamman Koil Street, as it was a Sarkar Poramboke Land.

The High Court agreed with the Lower Appellate Courts findings and stated that,

 “It is quite unfortunate that the 2nd defendant Municipality virtually attempted to wash off their hands by blindly supporting a flagrant encroachment made by the 1st defendant Temple. This sudden change of stand taken by the 2nd defendant was probably due to some official who was handling the case wrongly understanding the term “God Fearing”.

Another stance that was taken up by the defendants was that the Government has been added as a party, as the property was a Paramboke land, the bench restated that this too was a hyper technical plea that will not come to aid, for the public wrong committed by the temple.

The court relied upon the case, K.Sudarsan and others vs. The Commissioner, Corporation of Madras, and others (1984) and observed that every member of the general public has a right to pass and repass over a highway or a public street, and that cannot be taken away. And that, they can use every inch of the highway or a public street.

 “The right of access is not limited to the right to pass from the premises to the highway and vice versa, but includes the right of access to a wall on the boundary of the premises,” the court added.

The court while referring to various provisions of The Madras City Municipal Corporation Act, made it is clear that all public streets and their appurtenances vest in the Corporation. No one has got a right to build any wall or erect any fence or other obstruction or projection or make any encroachment in or over any street, which is vested in the Corporation except as otherwise provided.

The Court further added that, the owner of the property adjacent to a public street has got the right to access such street at any point at which his property actually touches the street.

The Court was of the view that, “Whoever commits an illegal act of encroaching upon a public street, even if it is a temple, should be prevented from undertaking such an illegal act. If any structure is put up in the public street and thereby, the access to the public in using the street is restricted or prevented, such a structure has to be removed immediately.”

Resultantly, the bench dismissed the second appeal with cost and directed to remove the entire illegal structure within 2 months from the date of the aforesaid order.

Further, the bench also added, to ensure that the public street is kept free from any encroachment and the public is able to have easy access.

[Case Title: Arulmighu Palapattarai Mariamman Tirukoil v. Pappayee & Ors.]