A. Abdul Farook vs Municipal Council, Perambalur & Ors

A. Abdul Farook ... Appellant

Versus

Municipal Council, Perambalur & Ors. ... Respondents

WITH

CIVIL APPEAL NO. 4973 OF 2009 (Arising out of SLP (C) No.9577 of 2005)

JUDGMENT

S.B. Sinha, J.

1. Leave granted.

2. Interpretation and/or application of Section 26 of the Tamil Nadu

Highways Act, 2001 (hereinafter referred to for the sake of brevity as `the

said Act') is in question in this appeal. It arises out of a judgment and order 2

dated 21.3.2005 passed by a Division Bench of the High Court of Judicature

at Madras in Writ Petition No.6820 of 2005 and Writ Appeal No.410 of

2005.

3. The basic fact involved in this matter is not in dispute.

On or about 13.2.1998 The Government of Tamil Nadu issued a

Notification bearing GOMs No.32 granting permission for installation of

statutes and erection of arches. In terms thereof, requisitions, seeking for

permission to put up of arches and the like, were submitted to the District

Collector, who, on receipt thereof was required to get reports from the

Divisional Engineer of the State Highways, District Superintendent of Police

etc. On receipt of such reports and on being satisfied therewith, the District

Collector could make recommendations so as to enable the Government to

grant or refuse to grant the requisite permission.

The Legislature of the State enacted the Tamil Nadu Highways Act,

2001 (Tamil Nadu Act 34 of 2002 ) (hereinafter referred to for the sake of

brevity as `the Act') with a view to provide for declaration of certain

highways to be the State Highways. It came into force with effect from

1.12.2002.

3

In exercise of its powers conferred upon the State Government under

Section 3 of the Act, it, on or about 16.12.2003, issued a Notification being

GOMs No.250 declaring some of the roads as State Highways, Major

District Roads and other District Roads. The roads in question in this appeal

are Thuraiyur-Perambalur Road and Thuraimangalam-Bungalow Road.

They have been classified as Major District Roads. Both the roads were

declared to be highways belonging to the Government.

On or about 22.10.2004, one Mr. Ravichandran, President of Tamil

Nadu Handloom and Textiles Development Corporation (respondent herein)

requisitioned the Perambalur Municipality to issue a `No Objection

Certificate' for the purpose of erecting arches on the occasion of 57th

Birthday Celebrations of the Chief Minister at two places outside the

boundary line of the abovementioned roads. On or about 23.10.2004, the

Executive Officer, Perambalur Municipality issued a No Objection

Certificate to construct the arches as per the abovesaid requisition on the

condition that there would be no hindrance to the traffic.

On or about 24.11.2004, the Municipal Council vide a resolution

dated 24.11.2004 granted its approval for grant of No Objection Certificate.

Thereafter the requisition and the approval thereof were placed before the 4

District Collector, who, in terms of the guidelines issued in GOMs No.32

called for reports from the Divisional Engineer of Highways, Ariyalur and

the District Superintendent of Police. The Divisional Engineer, Highways

on 20.12.2004 sent a report to the District Collector stating that arches can

be permitted to be put up at the said two places and that putting up of the

arches would not cause any hindrance to the traffic being outside the

boundary line of the roads. It was also stated in the report that an

undertaking was obtained from Mr. Ravinchandran that in case of expansion

of roads, he would remove the arches. On or about 14.01.2005, the District

Superintendent of Police also sent his report recommending grant of

permission for construction of arches.

On receipt of both the reports, the District Collector forwarded a

proposal to the Secretary to the Government of Tamil Nadu, State Highways

recommending for the required permission.

On or about 24.1.2005, the appellant - Ward Councillor of

Perambalur Municipality filed a writ petition being WP No.2503 of 2005

before the High Court of Madras praying, inter alia, for issuance of a writ of

certiorari quashing the abovesaid No Objection Certificate. A learned Single

Judge of the High Court dismissed the said writ petition by its judgment and 5

order dated 14.2.2005 holding that the proposed constructions do not fall

within the National Highways limits. An intra court appeal being WA

No.410 of 2005 was preferred by the appellant on 18.2.2005.

On or about 22.2.2005, the Secretary to Government of Tamil Nadu,

State Highways Department, taking into consideration the recommendation

made by the District Collector and after satisfying himself that the

guidelines stipulated in GOMs No.32 have been complied with granted

permission to construct the arches.

One Mr. N.G. Karunakaran, claiming himself to be the Secretary of

the District Consumer Council, Perambalur, filed a writ petition being WP

No.6820 of 2005 praying for issuance of a writ of mandamus forbearing the

respondents from putting up of permanent arches.

The Division Bench of the High Court by reason of the impugned

judgment dismissed both the Writ Appeal No.410 of 2005 as well as the

Writ Petition No.6820 of 2005.

4. The appellants are, thus, before us.

5. Assailing the judgment of the High Court, Mr. T.L.V. Iyer, learned

senior counsel appearing on behalf of the appellant, would urge that the 6

High Court committed a serious error in holding that Section 26 of the Act

does not deal with a permanent structure and the same comes within the

purview of GOMs No.32. Sub-section (1) of Section 26 of the Act being

clearly applicable, it was contended, that no sanction could be granted by the

State in terms of GOMs No.32 or otherwise. It was furthermore urged that,

in a case of this nature, doctrine of public trust would be applicable.

6. Learned counsel for the Municipal Corporation has drawn our

attention to a resolution dated 10.6.2008 passed by it in terms whereof the

lands in question are sought to be acquired.

7. Learned counsel appearing on behalf of the National Highways

contended that a project of making the State Highway or four lane road had

been taken up and the same has been completed.

8. Learned counsel for the State Highways adopted the submission of the

learned counsel.

9. Mr. C.S. Vaidhyanathan, learned senior counsel appearing on behalf

of Respondent Nos.1 and 6, on the other hand, would contend:

i) Assuming that constructions of permanent structures would

attract the provisions of sub-section (1) of Section 26, the same 7

deserves strict construction and as permission had been granted

by the State, the constructions made by way of arches cannot be

construed to be an encroachment within the meaning of the

provisions of the said Act.

ii. If a literal meaning to sub-section (1) of Section 26 is assigned,

no over-bridge can also be constructed for the pedestrians nor

any signboard can be put up for the benefit of the public. The

constructions having been made far away from the tar road, the

impugned judgment should be upheld.

iii. Appellant having not challenged the validity of the order passed

by the State Government granting permission to put up the

arches in the writ petition, this Court may not interfere

therewith in exercise of its jurisdiction under Article 136 of the

Constitution of India.

iv. The appellant No.2 has wrongly described himself as a member

of the District Consumer Council as the said Council has been

wound up long back.

v. The appellants being belonging to the rival political parties, the

writ petitions have been filed mala fide.

8

10. The preamble of the said Act reads as under:

"An Act to provide for the declaration of certain highways to be State highways, restriction of ribbon development along such highways, prevention and removal of encroachment thereon, construction maintenance and development of highways, and levy of betterment charges and for matters connected therewith or incidental thereto."

Indisputably, the said legislation seeks to regulate the roads in the

State other than the National highways. It was enacted with a view to fix

building and control lines of such roads, to declare such roads as State

Highways, Major District Roads and Village Roads, to prevent any

encroachment on such State Highways, to acquire required lands for

formation and development of the State Highways. It was also considered

necessary that the State Highways Authorities are vested with statutory

powers to undertake such measures in the public interest.

Section 2(8) of the said Act defines `encroachment' to mean :

(8) "encroachment" means any unauthorised occupation of any highway or Land where the construction of a highway is undertaken or proposed to be undertaken or part thereof, and includes any unauthorised--

(a) erection of a building or any other structure, balcony, porch or projection on or over or overhanging the highways or part thereof; or 9

(b) occupation of such highway of such land, after the expiry of the period for which permission was granted for any temporary use under this Act; or

(c) excavation of embankments of any sort made or extended on such highways or part thereof or underneath such highway or part thereof."

Section 2(12) defines `highway' as under:

"(12) "highway" means any road, way or land which is declared to be a highway under section 3 and includes--

(a) all land appurtenant thereto, whether demarcated or not;

(b) the slope, berm, burrow pits, foot paths, pavement, whether surfaced or unsurfaced;

(c) all bridges, culverts, causeways, carriageways or other structures built on or across such road or way;

(d) the foot-way attached to any road, public bridge or cause way;

(e) the drains attached to any such street, public bridge or cause way and the land, whether covered or not by any pavement, varanda or other structure, which lies on either side of the roadway up to the boundaries of the adjacent property, whether that property is private or property belonging to the Central Government or any State Government ; and

(f) all fences, trees, posts and boundaries, hectometer and kilometer stones and other 10

highway accessories and materials stacked on such road or public bridge or causeway, but does not include a National Highway declared as such by or under the National Highways Act, 1956.

The term `Highway Authority' is defined under Section 2(13) of the

said Act to mean the officer appointed under sub-section (2) of section 5

thereof. Section 2(14) defines `highway boundary' to mean the highways

boundary as may be fixed under section 8.

Section 2(18) defines `middle of a highway' to mean :

(18) "middle of a highway" means the point half way between the boundaries of the highway in relation to any highway for the improvement of which plans have been prepared by the Highways authority, the middle of the highway as proposed to be improved in accordance with the plans or the point half way between the boundaries of the highway"

In terms of Section 2(19), an `occupier' includes :

"(a) any person who for the time being is paying or is liable to pay to the owner rent or any portion of the rent of the premises in respect of which such rent is paid or is payable; or

(b) a owner living in or otherwise using his premises; or 11

(c) a rent free tenant; or

(d) a licensee in occupation of any premises; or

(e) any person who is liable to pay to the owner damages for the use and occupation of any premises."

Section 3 empowers the State Government to declare any road, way or

line to be a highway and classify it as any of the following :

(i) A State Highway;

(ii) A major district road;

(iii) Other district road; or

(iv) A village road.

on the recommendations made by the state Highway Authorities.

Chapter III of the Act provides for the restriction of ribbon development.

The Highway authority of any division is empowered to issue a notification

in relation to any highway or any area in that division where the construction

or development of highway is undertaken or proposed to be undertaken,

fixing:

"(a) the highway boundary, building line, or control line; or

(b) the highway boundary and the building line; and

(c) the building line and the control line."

12 Section 9 provides for restriction on building.

Chapter V of the said Act provides for prevention of

unauthorized occupation of and encroachment on a Highway and

removal of encroachment in the following terms :

"26. Prevention of unauthorized occupation of highway.--(1) No person shall occupy or encroach on any highway within the highway boundaries.

(2) Notwithstanding anything contained in sub-

section (1), the Highways authority may, with the concurrence of the Collector and with due regard to the safety and convenience of traffic and subject to such conditions, and on payment of such rent or other charges as may be prescribed, grant permission, of a temporary nature, to any person--

(a) to make any temporary use of any highway in front of any building owned or occupied by him or make a temporary structure overhanging the highway; or

(b) to put up a temporary owning or tent, pandal or other similar erection or a temporary stall or scaffolding on any highway; or

(c) to deposit or cause to be deposited building materials, goods for sale or other articles on any highway for a specified period; or

(d) to make a temporary excavation on any highway for carrying out any repairs or improvements to building on lands adjoining such highway:

13 Provided that no such permission shall be deemed to be valid beyond a period of one year, unless it is expressly renewed by the Highways authority.

(3) The permission granted under sub-section (2) shall clearly specify the date upto which and the purpose for which the occupation of the highway is authorised and the exact portion of the highway so permitted to be occupied, and shall also be accompanied by a plan or sketch of that portion of the highway. A copy of such permission shall be communicated to the Collector for the purpose of record.

(4) The person in whose favour such permission has been given shall produce the permit for inspection whenever called upon to do so by the Highways authority, or any officer authorised by it in that behalf and shall, at the end of the period specified in the permit, vacate the portion of the highway occupied by him, after restoring it to the same state as it originally stood before the occupation by him.

(5) The Highways authority shall maintain a complete record of all such permissions granted, and shall also cause an inspection to be made in every case at the expiration of the period upto which such occupation has been permitted, to ensure that the portion of the highway has actually been vacated.

(6) The permission granted under sub-section (2) shall be in such form and subject to such conditions as may be prescribed."

Section 49 of the said Act provides for a penalty, stating 14

"49. Unauthorised occupation of highway.--

Whoever--

(a) occupies or makes any encroachment on any highway in contravention of the provisions of section 26: or

(b) Fails to comply with the notice served on him under clause (ii) of sub-section (2) of section 28, shall on conviction, be punishable--

(i) for the first offence with fine which may extend to two hundred rupees; and

(ii) for any subsequent offence in relation to the same encroachment, with fine which may extend to five hundred rupees plus a further fine not exceeding fifty rupees per day on which such occupation of the highway or encroachment continues."

11. Sub-section (1) of section 26 having been couched in negative

language must be construed to be imperative in character. The mandatory

nature of the said provision is also evident from the penal provisions

contained in Section 49 of the Act.

The High Court, however, in its impugned judgment, upon taking into

consideration the provisions of the Act as also the Rules framed thereunder,

opined:

15

"51. However, in the instant case, neither permission is sought for either for putting up a structure of temporary nature in any highway or overhanging the highway nor permission is sought for a particular period under Form `A' or any rate has been fixed under Rule 8. In other words, there are no provisions under the Act or the Rules framed under the Act, to deal with statues or arches, which are to be installed or put up in the highways, as a permanent structure.

52. As a matter of fact, the petitioner N.G. Karunakaran, in W.P. No.6820 of 2005, himself, in his prayer, would seek for a mandamus, forbearing the respondents from permitting/putting up of permanent arches at the four road junction of Perambalur and the three road junction of Thuraimangalam. As such, it is nobody's case that the putting up of arches in the said two placed is either of a temporary nature or to make any temporary use of any highway or make a temporary structure overhanging the highway."

53. Since the construction of arches sought to be put up is of a permanent nature, we are of the view that G.O.Ms. No.32, Highways Department, dated 13.02.1998, alone would be applicable, as it would deal with statutes and arches exclusively."

The High Court, however, noticed that permission had been granted to

put up arches at both the places, giving the specific measurement, allowing

for putting up middle pillars in the middle of the roads finding that although

putting up of arches would not prevent the free flow of traffic but putting up

of middle pillars in both the arches would certainly cover the middle space

of tar road portion in which event there may not be free flow of traffic to 16

pass or repass. It view of the aforementioned finding, it issued, inter alia,

the following direction :

"57. Therefore, we direct the Government to allow the arches to be put up at both the places without middle pillars, by giving sufficient strength to the either side pillars, to have a grip over the arches, overhanging the highways."

The High Court summed up its judgment as under :

"(1) The prayers sought for in W.P. No.6820 of 2005 and w.A. No.410 of 2005 are not sustainable. (2) In view of G.O.Ms. No.250, Highways (NH2), dated 16.12.2003, declaring the roads in question as Highways belonging to the State Government, the provisions of Sections 180, 180-

A, 181 and 182 of the Tamil Nadu District Municipalities Act, 1920, are not applicable.

(3) The Tamil Nadu Highways Act, 2001, is not applicable with reference to the permission for installation of arches, in view of G.O.Ms. No.32, Highways Department, dated 13.02.1998, which would exclusively govern the same.

(4) Permission, granted by the Secretary to Government of Tamil Nadu, Highways Department, on the basis of the recommendation of the Divisional Engineer of the said Division and the District Collector, is perfectly valid.

(5) State Government is directed to allow the arches to be put up of both the places without middle pillars, by giving sufficient strength to the either side pillars, to have a grip over the arches, 17

overhanging the highways, so that the public use the entire portion of the tar road, to pass and repass."

12. We, with respect, are not in a position to persuade ourselves to agree

with the opinion of the Hon'ble High Court.

13. Sub-section (1) of Section 26, as noticed hereinbefore, is mandatory in

character. Sub-section (2) of Section 26 is an exception to Sub-section (1)

of Section 26.

The provisions of Section 26 with a view to prevent unauthorized

occupation of highway or encroachment thereof would, however, apply to

third parties and not to the Highway authorities. The power to grant

permission for erecting any arch or any other constructions strictly lies with

the Highway authority.

The State, after coming into force of the said Act, is denuded of its

power in the matter of grant of any permission. The High Court, in our

opinion, thus, committed a manifest error in holding that the State would

exercise its jurisdiction of in terms of GOMs No.32.

14. Mr. Vaidyanathan would contend that no encroachment has been

caused having regard to the fact that the width of the road being 14 meters 18

and the recommendations having been given to construct the arches as

mentioned in the sketch map, i.e. 9.25 meters away from the Taar Salai on

both the sides and the height of the same should not be less than 6.60 meters

to be supported by a pillar, the same would not come within the purview of

the term `encroachment' as defined in the said Act.

The State in its order contained in GOMs No.A6/13173/2004 noticed

that both the arches are to be maintained by Perambalur District Kuzhagam.

It furthermore noticed that the respondent himself has given an undertaking

that if any hindrance is caused to the concerned Department during the

course of the widening of the road, he shall be responsible for the removal

thereof.

15. We would assume that having regard to the definition of

encroachment as contained in Section 2(8) of the Act, any construction made

with permission would not come within the purview thereof. We would also

assume that the provisions of Section 2(8), Section 8 and Section 26 of the

Act are required to be construed harmoniously. Notice may also be taken of

the fact that the State of Tamil Nadu had granted permission for erection of

such arches throughout the State. Such permissions, inter alia, are being 19

granted for construction of arches in honour of its leaders or God or for

depicting the name of the place.

16. Before us, the details of such arches and/or the photographs thereof

have also been produced. We, however, fail to understand as to why the

State shall grant permission to erect such arches at the instance of a private

party. The State, being the principal protector of the rights of its citizens,

keeping in view the doctrine of public trust as adumbrated by this Court in a

large number of decisions, including M.C. Mehta v. Kamal Nath & Ors.

[(1997) 1 SCC 388]; M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu & Ors.

[(1999) 6 SCC 464] and Intellectuals Forum, Tirupathi v. State of A.p. &

Ors. [2006 (2) SCALE 494], should not have granted such permission. In

any event, with the coming into force of the said Act, GOMs 32 must be

held to have been repealed. The State Government, therefore, had no

jurisdiction to pass the order impugned in the writ application.

17. In a public interest litigation of this nature, it is not necessary for the

Court to abide by the strict rules of pleadings and even if it is found that the

petitioners are busy bodies, the courts while discharging them, could

proceed to deal with the public interest litigation suo motu. 20

In Nirmal Singh Kahlon v. State of Punjab & Ors. [(2009) 1 SCC

441], this Court held :

"The High Court while entertaining the writ petition formed a prima facie opinion as regards the systematic commission of fraud. While dismissing the writ petition filed by the selected candidates, it initiated a suo motu public interest litigation. It was entitled to do so. The nature of jurisdiction exercised by the High Court, as is well known, in a private interest litigation and in a public interest litigation is different. Whereas in the latter it is inquisitorial in nature, in the former it is adversarial. In a public interest litigation, the court need not strictly follow the ordinary procedure. It may not only appoint committees but also issue directions upon the State from time to time. (See Indian Bank v. Godhara Nagrik Coop. Credit Society Ltd. and Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar)."

{See also Indian Bank v. Godhara Nagrik Cooperative Credit Society

Ltd. & Anr. [(2008) 12 SCC 541] and Raju Ramsing Vasave v. Mahesh

Deorao Bhivapurkar & Ors. [(2008) 9 SCC 54]}

18. When questioned that even assuming that encroachment is not made

on the surface of the building line but may be in the air in view of well

settled principle of law that he who possesses the land possesses also having

regard to the maxim cedificatum solo solo cedi;. Our attention was drawn

by Mr. Vaidyanathan to the following passage from Broom's Legal Maxim: 21

"It may be noticed, in conclusion, that the maxim under consideration does not apply in favour of local authorities, in whom streets are vested by virtue of the Public Health Act, 1875, Section 149, or any similar enactment. Such enactments vest in the authority such property only as is necessary for the control, protection and maintenance of the streets as highways for public use, and confer no general proprietary rights in the air above or the ground below the streets. [Tunbridge wells v. Baird [(1896) AC 434]."

The English Law with regard to the limited right vested in the local

authorities under the Public Health Act, 1875 is not applicable in India. The

authorities acquired the land in terms of the provisions of the Act. The roads

vest in the authorities in terms of the provisions of the Land Acquisition Act

or the provisions of the State Highways Act or similar other statutes free

from all encumbrances. It is just not a case where a limited right is vested

by the State as a Local Authority.

However, there cannot be any doubt or dispute whatsoever that the

authorities in the interest of general public and pedestrians and others, in

particular, may grant permission to construct such buildings even if it be

permanent in character as it may seem fit or carry out such construction

itself as it may seem necessary. What is, however, important is public

interest in carrying out such construction and not any private interest or 22

interest of a political party. The doctrine of good governance, in our

opinion, requires the Government to rise above their political interest and act

only in public interest and for welfare of its people.

19. For the reasons aforementioned, the impugned judgment cannot be

sustained. It is set aside accordingly. The appeals are allowed with costs

payable by the Respondent Nos. 1 and 6. Counsel's fee assessed at

Rs.50,000/- (Rupees Fifty thousand only)

.............................J. [S.B. Sinha]

.............................J. [Deepak Verma] New Delhi;

July 31 , 2009