Illegal construction full order of W.P.No.819 of 2022 THE HON’BLE CHIEF JUSTICE and D.BHARATHA CHAKRAVARTHY,J. (Order of the Court was made by the Hon’ble Chief Justice) Learned counsel appears for respondents 4 and 5.

W.P.No.819 of 2022
THE HON’BLE CHIEF JUSTICE and
D.BHARATHA CHAKRAVARTHY,J.
(Order of the Court was made by the Hon’ble Chief Justice) Learned counsel appears for respondents 4 and 5.
2. The writ petition is to seek a direction to remove the
encroachment on the temple land.
3. The fifth respondent has contested the writ petition in reference to the judgment of the Apex Court, where certain directions were given in reference to the unauthorised construction of temple, etc. The direction was given to the Chief Secretaries of each States to
take a decision pursuant to the directions given therein.
4. In view of the above, learned counsel appearing for the fifth respondent submits that in compliance with the judgment of the Apex Court in the case of Union of India v. State of Gujarat [Appeal (C) No.8519 of 2006 dated 31.01.2018], the official respondents should be restrained from taking action in the matter. It is more so when the
construction was made after obtaining permission from the
respondents 3 and 4. Accordingly, a prayer was made not to accept
the prayer made by the petitioner.
5. Learned counsel for the fourth respondent submits that the fifth respondent has raised an unauthorised construction. Thus, initially a show cause notice was issued, followed by an order of eviction dated 28.01.2022. It is due to the pendency of the writ petition, further action was not taken, though it is admitted that there is no interim order in the writ petition. Rather, the writ petition has been filed
seeking removal of the unauthorised construction.
6. We have considered the submissions of the fifth respondent in reference to the judgment of Union of India v. State of Gujarat
supra.
7. We find that the State Government therein was issued with a direction to frame a policy on encroachment on temple land and to review the same on case to case basis. In the instant case, the unauthorised construction is not very old so as to be governed by the same parameters as applicable to old constructions. The aforesaid is clear in the light of the order passed by the Apex Court in the same case on 13.01.2013, wherein it was clarified that the issue of review or policy decision would be for the construction raised before the year 2013 and not for the subsequent construction. The construction in the case is much subsequent to the crucial date referred to by the Apex Court. Thus, the only excuse taken by the fifth respondent to save the unauthorised construction cannot be accepted and it cannot be in reference to any order passed by respondents 3 and 4, as they had no authority and therefore, only a show cause notice, followed by an
order to remove the construction, has been issued.
8. Prima facie, we are unable to accept the argument of learned counsel for the fifth respondent and at the same time, the fourth respondent has failed to take action in the matter, other than to complete the paper formalities. It is despite the pendency of the writ petition making allegation for the existence of the unauthorised construction that the fourth respondent has failed to take action other than for the paper formalities. The fourth respondent could not clarify as to why the unauthorised construction has not been removed when final order for it was passed on 28.01.2022. It is said to be due to the pendency of the writ petition though no interim order exists, rather,
the petitioner has prayed to remove the construction.
9. Taking into consideration the serious lapse of the fourth respondent, an order is passed that he would not draw the salary till the unauthorised construction is removed. The salary drawn from the public exchequer is not made for the inaction and for paper formalities,
but for the required action.
10. Necessary further orders in that regard would be passed at the final stage of hearing and accordingly, let this petition be listed after ten days, enabling the fourth respondent to produce the action
taken report in the matter.
11. List on 28.03.2022.
(M.N.B., CJ) (D.B.C., J.)
18.03.2022 kpl/drm
THE HON’BLE CHIEF JUSTICE and
D.BHARATHA CHAKRAVARTHY,J.
(kpl/drm)
W.P.No.819 of 2022
18.03.2022