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Judgment
C.V.Karthikeyan, J
The writ petitioner Sunkara Karthik has filed the present Writ Appeal calling into question the Order dated 26.04.2019 of the learned Single Judge dismissing his Writ Petition in W.P.No. 9541 of 2019.
The said Writ Petition had been filed in the nature of a Certiorarified Mandamus calling for the records relating to the demolition order dated 08.08.2013 by the Commissioner, Department of Hindu Religious Institutions, Puducherry and to quash the same and also to direct the respondents to conserve the heritage building "Sri Alivelu Manga Sametha Sri Venkateswara Swami Temple" at Yanam in its original archaeological structure.
The petitioner claimed to be devotee of the temple. He further claimed that the temple was built by the Kings of Rajamahendravaram in 15th century AD and that it was a heritage building. He also claimed that it came under the category of an Ancient Monument as defined under the Ancient Monuments and Archaeological Sites and Remains Act, 1958. He further claimed that the respondents, namely, the Commissioner, Department of Hindu Religious Institutions, and The Executive Officer cum Deputy Tahsildar of Sri Venkateswara Swamy Yanam Group of Temples and Sri Venkateswara Swamy Yanam Group of Temples Committee were scheming to demolish the building of the temple under the guise of reconstruction. He had also impleaded as a fifth respondent, the Minister for Tourism, Puducherry. He claimed that the respondents had not obtained permission from the competent authority under the said Act. Consequently, questioning the order of demolition, the Writ Petition was filed.
The respondents in their counter affidavit, on the other hand had stated that though the temple is an ancient temple, it was not a notified temple under the Act. It was therefore stated that there was no necessity to obtain permission from the Archaeological Survey of India either for renovation or for reconstruction. It was specifically stated that the temple was in a dilapidated condition and posed a threat to life of devotees and during rain, the sanctum sanctorum was inundated with water mixed with sewerage. It was stated that an expert committee had examined the construction and had advised reconstruction. It was specifically stated that the reconstruction was done as per the religious traditions and Agama principles and with the advise of Agama Sastra Pandits. The main deity was also shifted on 23.02.2018 to another place for performing Palalayam. A detailed plan had been prepared for the renovation of the temple. The Ministry of Tourism had also sanctioned a sum of Rs.5.45 crores for pathway and other facilities. The total cost of reconstruction was estimated at Rs.3.10 crores. It was stated that tenders were also floated. It was therefore stated that the reconstruction of the temple should be permitted to be proceeded with.
The learned Single Judge in the order impugned before us had examined the facts thoroughly and had also examined the report of the authorities from Industrial Consultancy Services, Department of Civil Engineering, University College of Engineering (Autonomus), Jawaharlal Nehru Technological University, Kakinada, submitted after inspection and had held that the Writ Petition was totally misconceived and was liable to be rejected.
The relevant portion of the order of the learned Single Judge is extracted below for ready reference:-
"8. Now, coming to the merits of the matter, it is the categorical case of the petitioner that the subject matter Temple is an ancient archaeological structure which cannot be demolished without permission from the Archaeological Department. On the other hand, the list submitted before this Court by the respondents, showing which are all the Temples covered under the said Archaeological Department, would clearly indicate that the subject matter Temple, is not the one covered under the said Department. Therefore, it is evident that the petitioner has simply approached this Court on mere presumption and assumption as if the subject matter temple is coming under the purview of Archaeological Department, merely because it is an old Temple. Therefore, I find that the very reasoning of the petitioner to approach this Court, based on mere presumption and assumption, does not have any legal legs to stand.
Now let me consider as to whether the impugned action of the respondents can be sustained, even though the subject temple does not fall within the purview of Archaeological Department. It is stated by the respondents that the temple is in a dilapidated condition and poses threat to life and limb of public. It is also stated that the P.W.D. top officials made inspection and found that economic repairs are not feasible. It is seen that the subject matter Temple was also inspected by the other authorities from Industrial Consultancy Services, Department of Civil Engineering, University College of Engineering (Autonomus), Jawaharlal Nehru Technological University, Kakinada, and they have given a report wherein it is stated as follows:
Field inspection of the temple
The Sri Venkateswara Swamy temple having different features of construction and life is having the complex as shown in schematic diagram in Fig.1. From the history of construction it was built about 600 years ago by Chalukya Kings of Rajamahendravaram during 15th century. The temple got affected during 1996 cyclone. Several repairs are taken up from time to time.
The temple mainly had three main portions.
Sri Venkateswara Swamy temple at center, Sri Bhoo Devi Temple towards right side and Mukhamandapam leading to central hall. Recently a Mandapam was constructed in the premises not connected to the old structure (Fig.2&3). The construction had Kapala Palakam (Roof Plates) resting on stone walls and Vimana Gopuram was constructed on palakam.
The Gopuram of Sri Venkateswara swamy temple (Fig.3) and rear portion of the temple (Fig 4&5) had vertical cracks at several places.
The construction was based on ancient traditional construction with stone columns and 1'8" thick walls supporting roof plates and Gopuram constructed with brick masonry with temple architecture on the walls.
The Sri Venkateswara Swamy temple is about 7 m in length and about 10 m in width upto the devotees standing place for performing puja.
No drawings pertaining to the construction details of the structure including footings could be procured nor provided.
The basement of the compound of the temple was presently located about 30 cm at lower with reference to the main road (Fig.6).
The basement of the temple was presently located about 30 cm at lower from the outside compound and temporary measures are taken by construction of threshold beam (Fig.& &8) on both sides of the hall.
Though the temple was well maintained attending periodical repairs in the form of repairs to roof and plastering to structural members spalling of material was observed at several places.
On rear portion of the wall of Sri Venkateswara Swamy Temple vertical cracks are observed extending from Gopuram portion to door opening passing viz., temple architecture. The temple also had a mild tilt towards the rear side (Fog.9)
Visible cracks have been noticed inside as well as around the building at few places (Fig.10&11)
The Stone columns constructed with sandstone got deteriorated with weathering observed at several places (Fig.12&13). The mortar joins had interface bound failure due to decay and also due to moisture ingress from the roof of the hall.
The drain water pipes embedded in brick walls are placed at base of the dome at every intersection. The drain pipes are completed chocked with vegetation at all the intersections and blocked leading to moisture in slab as well as beams deteriorating the interiors of the temple (Fig.14&15).
Drain is provided along the external wall are not properly maintained leading to seepage of the rain water into the structure.
The roof top of the flat portion has water stagnation with material all around the water tank portion without proper drainage facility (Fig.16&17).
Walls of the building are bearing indications of damping and Moisture at several places tough the walls are repaired periodically at several places and painted. Damping observed at few places at basement level on walls as well as near the brick columns of the old building
There is an active well very close to the building fitted with motor pump serving the requirements of the compound which may lead to further tilting and sinking of the temple.
A video showing the inflow of the rain water as well as domestic water from drainage constructed outside was submitted to the members for assessment of seriousness of unhealthy bad sanitary situations prevailing during rainy seasons.
All-round compound wall of the temple had vertical cracks at several places indicating settlements of the surface of the temple. Observations on the building Under the circumstances stated above and from the above detailed visual inspection of the temple the following observations are made.
The temple is very old and very well maintained periodically built on sandy soil existing very close to the confluence point of river Godavari to Bay of Bengal.
Though the building and served the purpose beyond it capacity efforts may please be put up to rebuild the entire compound using present day engineering giving utmost importance for retaining the antique value and adopt more effective measures with available technology for preserving the heritage of the deity.
The surroundings of the building had several development activities since inception like roads having about 1.00 m. depth with reference to the other adjacent buildings leading to huge settlement of the building with age.
The settlements of the building further magnified due to indiscriminate tampering of water from the well placed very close to the basement of the building.
The building may be damaged in case of any structural modifications are taken up due demand for space or in case of any requirement of extension to create extra space. Any modifications may lead to other complications associated with fatigue of the age old materials used for construction. Recommendations
Under the circumstances stated above, it is advised to go for new construction taking due precaution on maintaining the sanctity of the pilgrim place adopting procedures stipulated by endowments for reconstruction.
Due importance may be given to drainage and other aesthetics of the area handling the operations more scientifically and adopting conventional engineering procedure.
Perusal of the above said report and the recommendations made therein by such authorities, which speaks for itself, would undoubtedly show that the impugned action of the respondents, cannot be faulted with. If repairs and renovation are not feasible to retain the structure as it is and on the other hand, if it is seen that such structure, if allowed to continue as such, would pose a threat of crumbling down, nothing wrong in going for a reconstruction of such structure, of course, by replicating its originality. The respondents must ensure to bring back the originality while reconstructing the Temple, by keeping in mind that the memory of ancientness of the Temple is not lost in the minds of the public forever. Hence, I find every justifiable reason to sustain the impugned order and that the present writ petition is totally misconceived and thus, liable to be rejected. Accordingly, the Writ Petition is dismissed. Interim order of status quo granted already is vacated. No costs. Consequently, connected miscellaneous petitions are closed."
[Emphasis supplied]
Heard arguments advanced by Mr.S.Duraisami, learned counsel for the appellant and Mrs. Mala, learned Government Pleader appearing for the first to third respondents and Mr.M.Ravi, learned counsel for the fourth respondent.
It is the contention of Mr.S.Duraisami that the temple is an ancestral temple and consequently deserves to be preserved. It is his further contention that if the deity has to be shifted, the respondents are free to construct another temple at another place and relocate the deity. However, he was insistent that the respondents should not demolish the temple, but must reconstruct the same at the same place. The learned counsel stated that the act of demolition would effectively destroy the ancient quality of the temple. He further claimed that it being an ancient monument, necessary permission from the Archaeological Survey of India should be obtained. In this connection, he had also filed C.M.P.No. 12133 of 2019 to implead as respondents, (i) the Director General, Archaeological Survey of India; (ii) the Superintending Archaeologist, Archaeological Survey of India and (iii) the Senior Conservation Assistant, Archaeological Survey of India.
The learned counsel was emphatic in his submission that the preservation of the temple should be the utmost priority consideration of this Court and urged that the order of demolition should be interfered with. In the connection, the learned counsel also placed reliance on a Judgment by a learned Single Judge of this Court in W.P.No. 11796 of 2008, [ S.Gnanasekaran Vs. Archaeological Survey of India and others] dated 25.01.2011.
On the other hand, Mr.M.Ravi, learned counsel appearing for the fourth respondent temple stated that all necessary steps have been take to renovate and reconstruct the temple in its original place with sufficient elevation in order to prevent inundation of water mixed with sewerage into the sanctum sanctorum of the pre-existing deity. Photos and status report of the construction were also produced for consideration.
Mrs. Mala, learned Government Pleader, Puducherry, appearing for the first to third respondents stated that the Government of Puducherry had taken utmost care in taking expert advise from Agama Sastra Pandits and the renovation was being done keeping in mind the regulations under the Agama Sastra Pandits. She specifically stated that the temple has become very dilapidated and it posed a danger to life and the Union Territory of Puducherry was under an obligation to reconstruct the temple. She also stated that relocating the temple to another place would not be appropriate as the location of the temple also placed a very significant part in its sanctity and consequently, maintained that the reconstruction work should be permitted and that the order of the learned Single Judge did not warrant any interference.
We have carefully considered the rival submissions.
On a perusal of the records, it is seen that a public interest Writ Petition had earlier been filed by one Manchala Satya Sai Kumar in W.P.No. 19094 of 2007 seeking the very same relief and a Division Bench of this Court had declined to pass any orders and had disposed of the Writ Petition observing that there was no threat of demolition of the temple and that it would be renovated considering the defects in maintaining the temple. The very same writ petitioner had then filed another Public Interest Writ Petition in W.P.No. 9718 of 2013. This came up for consideration before another Division Bench of this Court and by order dated 24.06.2013, the respondents had been directed to consider the representation given, which representation was for a direction to reconstruct the temple.
We thus find that the necessity to reconstruct the temple had been examined by this Court and it had been established as a fact that the temple was in a dilapidated condition.
As observed by the learned Single Judge in his elaborate order, the temple is not a notified temple under the Archaeological Survey of India. Consequently, permission from the said authority is not required and therefore, the application in C.M.P.No. 12133 of 2019 filed to implead the said authorities as sixth to eigth respondents does not withstand our scrutiny and therefore, they are dismissed. The Judgement cited by the learned counsel for the appellant, namely, the order of the learned Single Judge in W.P.No. 11796 of 2008, [ S.Gnanasekaran Vs Archaeological Survey of India and others] dated 25.01.2011, related to a case wherein the writ petitioner had sought permission to construct a bunk tea shop within the precincts of Brihadeeswarar Temple at Thanjavur. While rejecting the plea of the writ petitioner therein, the learned Single Judge had also thought it fit to opine on the necessity to preserve ancient monuments and ancient temples. The facts in that case are clearly distinguishable.
In the present case, even though the temple is an ancient temple, it is not a notified temple under the Ancient Monuments and Archaeological Sites and Remains Act, 1958. As seen from the status report additional facilities were sought to be provided. The respondents are taking every effort to ensure that the sanctity of the temple is maintained. This Court cannot sit in Judgment over the reasons provided. A team of experts have been appointed to go into the entire issue. The Government of Puducherry had also sanctioned a total sum of Rs.5.45 crores towards providing facilities for the temple, apart from Rs.3.10 crores for renovation.
A status report was filed relating to the proposed improvement and additional facilities on the reconstruction to the temple along with the approved plan and photographs for consideration of this Court. In the proposed improvements and additional facilities, it had been stated by the President, Sri Venkateswara Devastanams Group of Temples, Yanam is as follows:-
"1. The basement of the Temple as on date being very low in comparison to the surrounding residential buildings, the height of the basement of the proposed Temple will be increased by 6 feet on par with the existing road and thereby bringing out a permanent solution to get rid of water logging and water/drainage stagnation and poor sanitation.
RAFT foundation will be provided with 4 feet of river sand and 2 feet of granite paver in the area housing the main structures to not only provide strength and stability but also to be an effective water proof.
Though the news go around that the Deity has been housed in the same area for more than 600 years, the existing Temple structure shall hardly be 100 to 120 years as it is only a brick construction and only by meticulous maintenance with decorative paintings the Temple was seemingly a stable structure.
Namakkal Granite stones will be used for construction of the proposed Temple and the stone masonry works will be carried out renowened experts in the field to be brought from Tanjore or from such Temples cities in Tamil Nadu. This will provide great stability and longevity to the Temple.
The Granite flooring will be provided for better appearance and for maintaining cleanliness of the temple.
Constructing the all round Mandapam with granite paved flooring which enable to perform ritual functions and marriages even during rainy season.
Providing high quality electrification to the entire temple. Temple premises will be fully illuminated after completion of the project.
Providing toilets and cloak room outside the temple for benefiting the devotees.
Providing kitchen in temple premises to prepare prasadams in the temple compound only.
Construction of water sump and RO system to provide drinking water facility to the devotees. Providing a good drainage system for free flow of rain water and proper outlet for Abhisekam water etc.
The total construction (layer by layer wise) will be supervised by silpi/stapthi (Sculpture), and technical monitoring committee formed by Government of Pudhucherry.
The existing structurally unsafe well painted but dilapidated partially demolished Temple will be replaced by a safe and strong Temple with artistic sculpture by strictly following the Agama Sastras (by utilising the services of highly renowned Agama Sastras Pandits) with proper electrification, sanitation, water and other special facilities, in the interest of thousands of devotees which also will attract Temple Tourism at Yanam.
Any other useful, purposeful improvements to be made on getting the feedback from the devotees and with the aid and advice of the relevant experts."
[Emphasis supplied]
A brief note had also been given by the Public Works Department, Yanam, with respect to the nature of development of the Temple under Swadesh Darshan Scheme. The brief note is as follows:-
Name of Work: Development of Sri Venkateswara Devasthanam group of Temples, Yanam under Swadesh Darshan Scheme.
The Ministry of Tourism, Government of India under Swadesh Darshan Scheme has sanctioned this project on 28.06.2017 for development of Sri Venkateswara Swamy Temple, Yanam for an amount of Rs.5.45 Crores with the following components.
1.
Pathways and paved area
Rs.160.00 Lakhs
2.
Multipurpose Hal
Rs.250.00 Lakhs
3.
Tourist facilities-Information Kiosk, Clock room, Toilets
Rs. 75.00 Lakhs
4.
Illumination of temple premises
Rs. 50.00 Lakhs
5.
Drinking water provisions, Litter bins and Benches
Rs.10.00 Lakhs
Total
Rs.545.00 Lakhs"
The main component of this estimate is to provide a multipurpose hall with path ways and paved area ie., peripheral main mandapam in RCC framed structure with stone cultured walls and Granite flooring that was not so far available to this temple in which it is being used for performing temple's rituals, Yogas etc and as well as huge number of marriages of the faithful devotees and poor local folk in the vicinity that is in practice for the past several centuries by which this village was also called "Kalyanapuram" in olden days. By constructing this main mandapam with granite paved flooring the marriages and as well as the ritual functions of temple can be performed in a comfortable way even in the rainy seasons without any interruptions and there by the temple authority and general public will be benefitted in a great way. The other components of this estimate are basic amenities and facilities such as information such as Information Kiosk, Clock Room, Toilets, Temple Illuminations, Drinking water provision, Litter bins, Benches etc. By constructing this peripheral main mandapam with amenities the oldest and structurally unsafe existing temple will be developed / renovated / reconstructed into a fully facilitated and fully cultured / Artful famous temple in a great way."
[Emphasis supplied]
It is also seen that the Yanam Planning Authority, Yanam, had also granted approval of the proposal for the construction/reconstruction to the Temple by order No.10/YPA/BP/2019/80 dated 12.06.2019. It is thus seen that the respondents have taken all effective steps to preserve the sanctity of the temple and have also kept in mind the necessity to bring about a permanent solution to get rid of water logging and water/drainage stagnation and poor sanitation to provide better facilities to the devotees and also for greater stability and longevity of the temple.
In view of all these facts, we do not find any reason to interfere with the order of the learned Single Judge. Accordingly, we confirm the said order and hold that the Writ Appea,l being devoid of merits, deserves to be dismissed and it is accordingly dismissed. No costs. Consequently, C.M.P.Nos. 14415, 11923 and 11572 of 2019 are closed. C.M.P.No. 12133 of 2019 is dismissed.