Madras High Court
P.Natarajan vs The District Collector on 18 October, 2012
Equivalent citations: AIR 2013 (NOC) 277 (MAD.) (MADURAI BENCH)
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/10/2012 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P(MD)No.6266 of 2008 M.P(MD)No.2 of 2008 P.Natarajan .. Petitioner Vs. 1.The District Collector, Kanyakumari District, Nagercoil. 2.The Block Development Officer (Panchayats), Munchirai Panchayat Union, Puthukadai Post, Kanyakumari District. 3.The President, Methukummal First Grade Panchayat, Munchirai panchayat Union, Methukummal Post, Kanyakumari District. 4.The Correspondent, St. Mar's Matric Higher Secondary School, Vandankanavilai Junction (Mariagiri), Kaliyakkavilai Post - 629153, Kanyakumari District. .. Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of certiorarified Mandamus, calling for the records pursuant to the impugned Resolution No.167, dated 29.02.2008, on the file of the third respondent Panchayat, quash the same and consequently direct the respondents 1 to 3 to remove the Arch erected by the fourth respondent at Vandankanavilai Junction (Mariagiri) on the Kunnam Vilagam Road, Methukummal Panchayat, Kanyakumari District. !For petitioner ... Mr.M.Saravanakumar ^For 1st respondent... Mr.S.Kumar, Addl. Government Pleader For 2nd respondent ... No appearance For 3rd respondent ... Mr.S.O.Paramasivam For 4th respondent ... Mr.P.Subramanian for Mr.C.N.Ehoma Saviour :ORDER
Secretary of the Managing Committee, Arultharum Alikkal Athi Sivan Temple, situated at Kunnam Village, (Sivapuram), Iyankamam, Kaliyakkavilai, Kanyakumari District, has filed the present writ petition, for a certiorarified mandamus to quash the resolution No.167, dated 29.02.2008, passed by the President, Methukummal First Grade Panchayat, Munchirai Panchayat Union, Methukummal Post, Kanyakumari District, the third respondent herein and consequently, prayed for a direction to the respondents 1 to 3, to remove an arch put up by St. Mary's Matriculation Higher Secondary School, Vandankanavilai Junction (Mariagiri), Kaliyakkavilai Post, Kanyakumari District, the fourth respondent herein.
2. According to the petitioner, his father had constructed, "Arultharum Alikkal Athi Sivan Temple" and it is maintained by the temple committee. Lord Siva is the God, worshiped by the village people. The petitioner has further submitted that during "Margazhi festival", conducted in the first and second week of January,every year, the temple authorities would approach the third respondent, Panchayat, for permission to put up a temporary arch to welcome the worshipers of the deity, at Mariagiri - Vandankanavilai Junction. Accordingly, Permission would be accorded. The said practice has been followed for many years.
3. While that be so, the fourth respondent school, hurriedly put up a concrete pillar and erected an arch, at Mariagiri - Vandankanavilai Junction, in the first week of January, 2008. According to the petitioner, as the construction made by the fourth respondent has been done with a mala fide intention to defeat the customary right of the Hindus, in putting up a welcome Board or temporary arch, at the same place, a request was made to the respondents 1 and 3 to remove the arch. In response to the representation, the construction was removed by the respondents.
4. The petitioner has further submitted that when the first respondent was discharging his duties on 29.03.2008, the Correspondent of the fourth respondent school and others, interfered with the discharge of their official duties and hence, on the basis of the complaint lodged by the Sub Inspector of Police, Kaliyakkavilai Police Station, a case in Crime No.164 of 2008 under Sections 147, 148, 341, 332, 353, 294(b) & 506(i) IPC was registered, on the file of Kaliyakkavilai Police Station.
5. While that be so, the fourth respondent school, once again, constructed the arch at the very same place, without getting any prior permission, either from the Highways Department or the third respondent, Panchayat. It is the case of the petitioner that the third respondent Panchayat has no competence to pass any resolution, and to permit the fourth respondent school, to put up any permanent structure or erect an arch at Mariagiri - Vandankanavilai Junction.
6. On the above pleadings and inviting the attention of this Court to Section 131 of the Tamil Nadu Panchayat Act, 1984, (hereinafter referred to as "the Act") Mr.Saravanakumar, learned counsel for the petitioner submitted that no person shall, except, as permitted by Rules made under this Act and except in accordance with the conditions imposed by any licence made requisite by such rules, build any wall or erect any fence, or other obstruction or projection or make any encroachment whatsoever with the permanent or temporary, in or over any public road any property vested in or belonging to or regulated or owned by a village panchayat or panchayat union council.
7. Placing reliance on a judgment of this Court in W.P.No.21747 of 2010, dated 20.01.2011, learned counsel for the petitioner submitted that when the third respondent Panchayat has no authority to pass any resolution for erection or construction of a permanent arch, the construction made by the fourth respondent at Vandankanavilai Junction, Kanyakumari District, has to be treated, as an encroachment and that therefore, in exercise of powers under Section 131(1) & (2) of the Act, respondents 1 to 3 ought to have removed the encroachment and since there was a failure on the part of the Officials, to discharge their statutory duties, the petitioner is entitled to seek for removal of the arch.
8. Placing reliance on a decision of the Supreme Court in Abdul Farook Vs. Municipal Council, Perambalur and others, reported in 2009 AIR SCW 5292, learned counsel for the petitioner further submitted that even the State Government have no jurisdiction or authority to grant permission to erect such arches, at the instance of any private party and hence, the resolution passed by the third respondent Panchayat, permitting the 4th respondent to put up an arch, is contrary to the law of the land.
9. Learned counsel for the petitioner further submitted that the abovesaid temple has been permitted to put up a temporary arch to welcome the worshippers at Mariagiri - Vandankanavilai Junction, for so many years, and therefore, they have a right to put up the arch, at the abovesaid place. According to him, permission granted to the fourth respondent to put up a permanent arch would amount to infringement of rights guaranteed under Article 25 of the Constitution of India and such permission has been granted only with a view to defeat the customary rights of the Hindus.
10. On the basis of the counter affidavit filed by the President, Methukkumal First Grade Panchayat, Munchirai Panchayat Union, Kanyakumari District, the third respondent herein, Mr.Paramasivam, learned counsel for the panchayat, denied the averments that during Margazhi festival time, the temple authorities had approached the third respondent Panchayat, to erect any temporary arch, to welcome the worshippers, at Mariagiri - Vandankanavilai Junction. According to him, at no point of time, the temple authorities have approached the third respondent and the Panchayat had not permitted any one, to erect any temporary arch, during the festival season.
11. Learned counsel for the third respondent Panchayat further submitted that for the purpose of displaying the name of the school, the fourth respondent school, made a representation, seeking permission to put up an arch. In response to the same, on 29.02.2008, the third respondent Panchayat resolved to grant provisional permission, to erect an arch, displaying the name of the school, at Mariagiri - Vandankanavilai Junction. Based on the resolution, provisional permission for erection of an arch was granted to the fourth respondent-School on 29.02.2008, to put up an arch, within a period of 30 days. Thereafter, the fourth respondent has constructed the arch at Mariagiri - Vandankanavilai Junction, as per the plan submitted for the purpose of getting licence to erect an arch. Licence for erection of the arch was also issued to the fourth respondent on 12.03.2008.
12. According to the learned counsel for the third respondent panchayat, the petitioner had never approached the respondents 1 to 3 to remove the arch. The Tahsildar of Vilavankode Taluk, without the knowledge of the panchayat, has demolished the arch with police force. Thereafter, there was an agitation. The District Collector, Kanyakumari District, at Nagercoil, personally inspected the place, where the arch was erected and having satisfied with the permission granted by the panchayat, a new arch was constructed.
13. Learned counsel for the third respondent Panchayat further submitted that the provisional permission granted on 29.02.2008 is in accordance with the Tamil Nadu Panchayat (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 1999. He also denied the contention regarding collusion, on the part of the respondents 1 to 3, with the fourth respondent. According to him, the said temple is situated more than 500 meters away from Mariagiri - Vandankanavilai Junction, the place, where the arch has been permitted to be put up. He has further submitted that resolution No.167 was duly placed before the council and it was also resolved to grant temporary permission to the 4th respondent and that therefore, there is no irregularity or illegality committed by the third respondent Panchayat, warranting intervention, at the hands of this Court. For the abovesaid reasons, he prayed for dismissal of this writ petition.
14. Based on the averments made in the counter affidavit filed by the fourth respondent school, Mr.P.Subramanian, learned counsel for the fourth respondent, denied the contention that the construction of the arch was contrary to statutory provisions. According to him, on 16.02.2008, the Parents Teachers Association of the fourth respondent school, resolved to erect an arch at Mariagiri Junction, to display the name of the school. As per the said resolution, permission was sought for, from the third respondent Panchayat, to erect an arch, displaying the name of the school. Considering the interest of the students, as well as, the parents and public, permission was duly accorded by the third respondent panchayat. Thereafter, construction was made. While that be so, one S.Parvathi, Tahsildar of Vilavancode, with the posse of police force, demolished the arch. He denied the contention that police and public servants were prevented from discharging their duties, but fairly admitted that a complaint has been registered as Crime No.164/2008. Thereafter, the District Collector, Kanyakumari District, himself, intervened in the matter and that the arch was once again constructed.
15. According to the learned counsel for the fourth respondent, it is the temple authorities with a mala fide intention to cover the name board of the school and to disturb peace and tranquility in the area, have put up a temporary arch. Learned counsel for the fourth respondent submitted that the petitioner has no legal or statutory right, to object to the request made by the fourth respondent school and also to the consequential permission, granted by the third respondent Panchayat. He also submitted that the arch falls within the Panchayat land and the provisions of the Highways Act are not applicable. It is his further contention that even the margins vested in Highways and Rural works Department in Village Panchayat Areas Rules, 1999, do not stand in the way of the Panchayat in granting permission to erect an arch to display the name of the school. It is his further contention that it was unfortunate that religion has been brought into this issue, by the temple authorities, as if there was an infringement of Article 25 of the Constitution of India.
16. Placing reliance on an unreported judgment made in W.P.(MD).No.6287 of 2007, dated 24.07.2007, learned counsel for the fourth respondent submitted that a Writ Petition against a resolution is not maintainable. According to him, in the case on hand, only after permission, construction has been made. He further submitted that even assuming without admitting for argument sake, that if the petitioner was aggrieved over the order, granting permission to construct an arch, the remedy lies only before the Inspector of Panchayat and that therefore, the writ petition, filed without availing the alternative remedy, has to be dismissed. For the abovesaid reasons, he prayed for dismissal of the writ petition.
17. Heard the learned counsel for the parties and perused the materials available on record.
18. It is the case of the Secretary, representing the Managing Committee of the temple that, during the first and second week of January of every year, Margazhi festival would be conducted and on the request of the temple authorities, the third respondent panchayat would grant permission to erect a temporary arch, to welcome the worshipers at Mariagiri - Vandankanavilai Junction. According to the learned counsel, it is customarily done by the temple authorities. Per contra, it is the specific denial of the third respondent Panchayat that the temple authorities have not approached the third respondent Panchayat, at any point of time, to erect any temporary arch, at the abovesaid junction. It is also the submission of the panchayat that no permission has been granted, to the temple authorities, to erect any temporary arch. The very contention of the temple authorities that a temporary arch was permitted to be put up periodically, at the abovesaid junction, is strongly disputed. The averments made in the supporting affidavit are not substantiated, by producing any orders passed by the Panchayat, granting temporary permission.
19. In this context, this Court deems it fit to extract paragraph No.13 of the judgment made in Bharat Singh and others Vs. State of Hariyana and others, [1988 (4) SCC 534], wherein, the Supreme Court has explained the difference in the pleadings and evidence, between a proceeding under the Code of Civil Procedure and a Writ Petition.
"13.As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter- affidavit, as the case may be, the Court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit."
20. In the light of the above principles of law laid down by the Supreme Court, this Court is of the view that the petitioner, who has claimed a customary or conventional right, to put up a temporary arch, at Mariagiri - Vandankanavilai Junction, for the purpose of welcoming the worshippers, has failed to substantiate his case. Not even a scrap of paper has been produced before this Court to prove that the temple authorities, at any point of time, have approached the panchayat to put up a temporary arch and that permission has been granted. No materials have been produced before this Court to prove that at the same junction, in the previous years, a temporary arch has been permitted to be put up by the Panchayat. The inference is that the temple authorities have put up the arch, on their own, without any permission.
21. It is well settled that, in order to invoke the extraordinary remedy under Article 226 of the Constitution of India, there must be a constitutional or statutory or legal or customary right recognised under law and that there should be a failure on the part of the authorities in discharging their duties and functions. There should be a subsisting right and infringement of such a right, has to be substantiated by pleadings and evidence, as laid down by the Supreme Court in Bharat Singh case, stated supra.
22. Though the petitioner, the Secretary of the Managing Committee of the temple, has filed the writ petition, questioning the proprietary of the third respondent Panchayat, in passing a resolution No.167, dated 29.02.2008 and to quash the same, the averments in the supporting affidavit do not disclose that the personal right of the petitioner, under the Constitution of India or any statutory judgment under the Tamil Nadu Panchayats Act, 1994, has been infringed, and that therefore, there is a cause of action, to invoke the extraordinary remedy under Article 226 of the Constitution of India. The averments made by the petitioner, in the supporting affidavit are to the effect that the writ petition has been filed for himself and on behalf of the temple and that he has inter alia contended that the temple authorities have a right to erect a temporary arch, every year to welcome the worshippers, at the very same place, i.e., at Mariagiri - Vandankanavilai Junction. No right has been conferred on the temple authorities, or on the petitioner, under any law, or any order, passed by the panchayat or any other authority. permitting the petitioner, to put up an arch, as claimed.
23. In State of Punjab v. Suraj Parkash reported in AIR 1963 SC 507, a Constitutional Bench of the Supreme Court held that the existence of a right and infringement thereof, are the foundation of the exercise of the jurisdiction of the High Court under Article 226 of the Constitution. The right that can be enforced under Article 226 of the Constitution must ordinarily be the personal or individual right of the applicant.
24. At paragraph No.2 of the Judgement in Vinoy Kumar Vs. State of uttar Pradesh, AIR 2001 SC 1739, the Apex Court has held as follows:
"Para-2: Generally speaking, a person shall have no locus standi to file a writ petition if he is not personally affected by the impugned order or his fundamental rights have neither been directly or substantially invaded nor is there any imminent danger of such rights being invaded or his acquired interests have been violated ignoring the applicable rules. The relief under Article 226 of the Constitution is based on the existence of a right in favour of the person invoking the jurisdiction. The exception to the general rule is only in cases where the writ applied for is a writ of habeas corpus or quo warranto or filed in public interest. Fit is a matter of prudence, that the Court confines the exercise of writ jurisdiction to cases where legal wrong or legal injuries caused to a particular person or his fundamental rights are violated, and not to entertain cases of individual wrong or inquiry at the instance of third party where aggrieved here is an effective legal ad organization which can take care of such cases. Even in cases filed in public interest, the Court can exercise the writ jurisdiction at the instance of a third party only when it is shown that the legal wrong or legal injury or illegal burden is threatened and such person or determined class of persons is, by reason of poverty, helplessness, or disability or socially or economically disadvantaged position, unable to approach the Court for relief."
25. In State of Orissa Vs. Ram Chandra Dev and another, AIR 1964 SC 685, the Supreme Court has held as follows:
"But though the jurisdiction of the High Court under Art.226 is wide in that sense, the concluding words of the article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is legally invaded or threatened. The existence of a right is thus the foundation of a petition under Article 226".
26. In Gadde Venkateswara Rao Vs.Government of Andhra Pradesh, 1966 (2) MLJ (SC) 87: 1966 (2) An.W.R.(SC) 87: AIR 1966 SC 828, at Paragraph 8, the Supreme Court,held as follows:
"The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified."
27. After considering the above legal principles, a Division Bench of this Court, in Nadar Mahajana Sangam, Madurai through its General Secretary (For and on behalf of Shareholders of Tamilnadu mercantile bank Ltd.) Vs. Reserve Bank of India, Central Office, Department of Banking Operation Development Centre-I, World Trade Centre, Cuffee Parade, Bombay and others, reported in 2006 (1) CTC 776, at Paragraph No.8, has held as follows:
"The writ petition filed by the appellant cannot have any personal grievance in the matter and at best, only its members can have any grievance. It is well settled that ordinarily a writ petition can only be filed by someone who is personally aggrieved. The powers under Article 226 of the Constitution of India should be sparingly used and only in those clear cases where the rights of a person have been seriously infringed and he has no other adequate and specific remedy available to him. The relief under Article 226 of the Constitution of India is based on the existence of a right in favour of a person invoking the writ jurisdiction."
28. Yet another aspect to be considered is whether a writ petition would lie challenging a resolution passed by the Panchayat union / Township / Municipality / Corporation, as the case may be. Resolution passed by the abovesaid local bodies is only a decision of the respective council and any such decision taken by the council can be rescinded, modified, postponed or for any other bona fide reasons, it would not even fructify into an executive order, to be passed by the competent authority, under the relevant statutory provisions. A decision, in the absence of an order being passed by the competent authority, pursuant to the decision taken by the council, remains only as a decision. A mere resolution cannot be challenged in a writ petition under Article 226 of the Constitution of India. If an order is passed by the competent authority, then the same has to be challenged in the manner known to law.
29. Section 202 of the Act deals with the power of the Inspector of Panchayat to suspend or cancel resolution, etc., under the Act. The said provision is extracted hereunder:
"202. Power to suspend or cancel resolution, etc. under the Act. - (1) The Inspector may, by order in writing -
(i) suspend or cancel any resolution passed, order issued, or licence or permission granted, or
(ii) prohibit the doing of any act which is about to be done or is being done, in pursuance or under colour of this Act, if in his opinion, -
(a) such resolution, order, licence, permission or act has not been legally passed, issued, granted or authorised, or
(b) such resolution, order, licence, permission or act is in excess of the powers conferred by this Act or any other law or an abuse of such powers or is considered by the Inspector to be otherwise undesirable, or
(c) the execution of such resolution or order, or the continuance in force of such licence or permission or the doing of such act is likely to cause danger to human life, health or safety, or is likely to lead to a riot or an affray:
Provided that nothing in this sub-section shall enable the Inspector to set aside any election which has been held."
30. As rightly observed by the Hon'ble Judge in W.P.(MD).No.6287 of 2007, dated 27.08.2007, Section 202 of the Act, vests power on the Inspector of Panchayat to sustain, cancel any resolution passed or an order issued by the panchayat. Hence, the present writ petition filed, without challenging an order passed by the panchayat, granting permission to construct an arch by the fourth respondent school, to display the name of the school, before the competent authority, is not maintainable.
31. The decision made in W.P.(MD).No.6287 of 2008, dated 24.07.2007, relied on by the fourth respondent, is on the point and that the same can be made applicable, to the facts of this case. Hence the writ petition filed by the Secretary of the Temple, challenging Resolution No.167, dated 29.02.2008 is not maintainable.
32. Further, on the facts and circumstances of this case, Mandamus sought for will have the effect of setting aside, an order passed by the competent authority, ie., Panchayat, under an enactment and that the same cannot be issued. Though the powers under Article 226 of the Constitution of India is wide enough to reach justice, even in the absence of any challenge, on the principles of good conscience, equity and justice, facts of this case do not warrant issuance of any mandamus, to set at naught, the permission granted by the third respondent Panchayat on 29.02.2008, to erect an arch displaying the name of the school, at Mariagiri - Vandankanavilai Junction.
33. The permission granted is not for the purpose of displaying the photographs of any political leader. In the case on hand, the purpose for putting up the arch is to display the name of the school. The temple authorities have magnified the issue and alleged, as if, the official respondents have committed a grave error or illegality in permitting a school, to put up an arch, displaying the name of the school, when, day in and day out, big banners, flux boards and arches are put up by many, during birthday celebrations of political and communal leaders, and for many reasons. Following a resolution passed by the parent teachers association on 16.02.2008, a request has been made to the third respondent Panchayat. Subsequently, the third respondent Panchayat has passed the following resolution:
bkJFk;ky; Cuhl;rp K";rpiw Cuhl;rp xd;wpak;
jPh;khd efy;
2008k; Mz;L 2 khjk; 29k; njjp bts;spf;fpHik fhiy/khiy 10.30 kzpf;F bkJFk;ky; Cuhl;rp kd;w mYtyfj;jpy; itj;J Cuhl;rp kd;w jiyth; jpUkjp.O.bcwyk; kfpgh mth;fs; jiyikapy; eilbgw;w rhjhuz/mtru/rpwg;g[f; Tl;lj;jpw;fhd bghUl;Fwpg;g[.
M$h; bkk;gh;fs; (jiyth; cl;gl) bghUs;
jPh;khdk;
,ju tprak; bghUs; 14 g[dpj nkhp bkl;hpf; cah;epiyg;gs;sp khpafphp rhh;gpy; EiHt[thapy; mikf;f gs;sp jhshsh; je;j kD Fwpj;J jPh;khdpj;jy;. jPh;khdk; vz;/167 khpa fphp?Fs;sk; tpshfk; rhiy Jt';Fkplj;jpy; gs;spapd; bgah; bfhz;l EiHt[ thapy; mikf;f mDkjp tH';fp jPh;khdpf;fg;gl;lJ.
cz;ik efy;
jiyth;
bkJFk;kh; Kjy;epiy Cuhl;rp
34. Thereafter, the fourth respondent school has constructed an arch, at the abovesaid junction, as per the plan submitted by the school, for getting a licence from the Panchayat. According to the panchayat, the fourth respondent has constructed the arch, in compliance with the conditions and that licence, has been granted by the third respondent Panchayat in No.3/2008, dated 12.03.2008. The same is extracted hereunder:
rhu totikg;ig epWt[tjw;fhd chpkk;
(Licence for erection of the hoarding) vz;.3-2008 njjp 12.03.2008 ghh;it: tpz;zg;g vz; kw;Wk; gotk; III-d; njjp
fPH;f;fz;l epge;jidfSf;F cl;gl;L bkJFk;ky; Cuhl;rpf;Fr; brhe;jkhd epyj;jpy; khpafphp Fs;sk; tpshfk; rhiy Jt';Fk; ,lj;jpy; ePsk; 22 mo. cauk; 19 mo Centre Height, 25 mo. Pillar size 2-2 square mst[s;s rhu totikg;ig epWt[tjw;fhf Fr.My;gpd; jhshsh;. St.Mary's Matric H.S.S., khpafphp vd;gtUf;F chpkk; tH';fg;gLfpwJ.
1.,e;j chpkkhdJ khw;wj;jf;fjy;y.
2.bray; mYtyhpd; Kd; mDkjpapy;yhky; chpkk; bgw;wth; ve;jf;
fhuzj;jpw;fhft[k; rhu totikg;gpd; chpkj;jd;ikia khw;wk; bra;jy; TlhJ. ,e;j chpkk; 12.03.2008 njjpapypUe;J 11.03.2009 tiuahd fhyj;jpw;Fr; bry;jpwDilaJ.
Jiyth.
bkJFk;ky; Kjy;epiy Cuhl;rp.
bray; mYtyh;.
35. Though a copy of the abovesaid licence, produced across the bar, has not been filed by the fourth respondent earlier, as a document in support of his contention, this Court, for the purpose of adjudication of the lis, deems it fit to take the copy of the licence granted in No.3/2008, dated 12.03.2008, by the President of the third respondent Panchayat, as part of record.
36. It is the submission of the learned counsel for the fourth respondent that the licence for erection of the arch is being periodically extended. The said licence is stated to have been granted under the Tamil Nadu Panchayats (Licensing of Pandals and Temporary Structures, on Road Margins Vested in the Highways and Rural Works Department in Village Panchayat Areas) Rules, 1999, framed in exercise of the powers conferred by sub Section (1) of Sections 131 and 242 of the Tamil Nadu Panchayats Act, 1994 and it has been issued in supersession of the rules relating to Licensing of Pandals and Temporary Structures on Road Margins, vested in Highways and Rural Works Department, in the Village Panchayat areas. Though the learned counsel for the petitioner has submitted that the third respondent panchayat, has no jurisdiction to pass an order, over the land belonging to Highways Department, no materials have been produced before this Court to substantiate that the land, on which, the arch has been permitted to be put up by the Panchayat, belongs to Highways Department. The Highways Department has not been made as a party respondent, in this writ petition. Even taking it for granted, that the lands belong to Highways Department, the petitioner cannot be said to be an aggrieved person, by the action of the Panchayat in granting permission to the fourth respondent school to put up an arch, on the land, stated to be owned by the Highways Department, as there is nothing to indicate that his personal right or the right of the temple, is affected. It is for the Highways Department to approach the District Administration. The oral submission, as to the ownership of the land, is not substantiated and in the light of the decision in Bharat case, cited supra, the same deserves to be rejected.
37. What is prescribed under Section 131 of the Act, is on or after the date of commencement of the said Act (3rd Amendment) Act 2000, no person shall erect any hoardings (other than traffic sign and road sign) visible to the traffic on the road and which is hazardous and disturbance to safe traffic movement, so as to adversely affect free and safe flow of traffic. The said Section reads as follows;
"131. Prohibition against obstructions in or over public roads, etc.- (1) No person shall, except as permitted by Rules made under this Act and except in accordance with the conditions imposed by any licence made requisite by such Rules-
(a) build any wall or erect any fence or other obstruction or projection or make any encroachment whatsoever, whether permanent or temporary, [in or over any public road or any property vested in or belonging to or regulated or owned by, a Village Panchayat or Panchayat Union Council];
(b) make any hole or deposit any matter [in or upon any public road or any property vested in belonging to or regulated or owned by, a Village Panchayat or Panchayat Union Council];
(c) work a quarry in or remove stone, earth or other material from any place within twenty metres of a public road or of other immovable property vesting in or belonging to a Village Panchayat or Panchayat Union Council, provided that nothing in this clause shall be deemed to apply to any work which, in the opinion of the Inspector, is done in connection with a bona fide agricultural operation;
(d) erect any building over any drain or any part thereof;
(e) plant any tree on any public road or other property vesting in or belonging to a Village Panchayat or a Panchayat Union Council; or
(f) fell, remove, destroy, lop or strip bark, leaves, or fruits from, or otherwise damage, any tree which is growing on any such public road or other property or on any poramboke land, the use of which is regulated by a Village Panchayat under Section 134 or Section 135 and the right to which has not been established by such person as vesting in or belonging to him. (2) It shall be the duty of the Village Administrative Officer of every revenue village to report on encroachments on properties vested in Village Panchayats or Panchayat Union Councils to the Executive Authority or the Commissioner concerned and to the officer of the Revenue Department, and [it shall be the duty of the Executive Authority or the Commissioner concerned either suo motu or on obtaining a report from the Village Administrative Officer in this regard to institute proceedings under this Act] and secure the removal of the encroachments within such time as may be specified by the Government by general or special order. If the removal of the encroachments has not been secured within the period specified in such order, the officers of the Revenue Department shall institute proceedings under the Tamil Nadu Land Encroachment Act, 1905 (Tamil Nadu Act III of 1905) and secure such removal."
38. There is no total prohibition under Section 131 of the Act, that no arch can be permitted to be put up either temporarily or permanently. As stated supra, licence has been issued under the Tamil Nadu Panchayats (Licencing of Hoardings and Levy and Collection of Advertisement Tax) Rules 1999. Admittedly, the licence granted has not been challenged.
39. It is also brought to the notice of this court that earlier, this Court in M.P.(MD).No.2 of 2012 in W.P.(MD).No.6266 of 2008, dated 04.01.2011, at paragraph No.6, has passed the following orders:
"6.In these circumstances, this Court without going into the merits and demerits of the matter, at this stage, is inclined to direct the petitioner to approach the first respondent/District Collector, Kanyakumari District, Nagercoil by submitting a written representation in regard to the conduct of Marghazhi festival for the period from 06.01.2011 to 15.01.2011 and on such representation is being made, the first respondent, the District Collector is directed to pass necessary orders in the matter in issue in the manner known to law and in accordance with law."
40. During the course of hearing, Mr.P.Subramaniam, learned counsel for the fourth respondent school submitted that pursuant to the abovesaid directions, stated supra, the petitioner's temple has submitted a representation on 07.01.2011, on behalf of the temple and after considering the request, permission has been granted to put up a temporary banner. He has also stated that subsequently, whenever, a request is made by the temple authorities, for the celebration of Margazhi temple festival, permission to put up a temporary structure is being granted by the District Administration. Perusal of the order made in Roc.No.C3/936/2011, dated 08.01.2011, shows that the District Collector has convened a meeting on 08.01.2011 at the Collector's Office, Nagercoil, along with the Superintendent of Police, Nagercoil and Revenue Divisional Officer, Padmanabapuram and other officials, and a detailed discussion has been made on the matter. In the discussion, Thiru.P.Natarajan, Secretary of the temple has been heard. Similarly, Fr.Pathrose, Correspondent of the school has also participated in the meeting.
41. At this juncture, this Court deems it fit to extract the photographs produced by the both the fourth respondent-School.
42. Perusal of the paragraphs, produced before this Court, by the fourth respondent, shows that the temporary banner or arch put up by the temple authorities have virtually eclipsed the entire name board put up by the school. Nobody can claim any customary right recognised under any law or religion, to put up a welcome arch, at a particular place. Photographs produced clearly indicate that the road is not a National Highway. Perusal of the photographs further shows that there is a big building on the left side of the road, which is stated to be a college and on the right side, there is a church. The specific plea of the third respondent Panchayat that the temple is situated 500 meters away from Mariagiri - Vandankanavilai Junction, is not disputed. On the premise the temple authorities have a customary right, recognised under law, for erecting a welcome board or temporary arch, for a short period i.e., during the first and second week of January, for celebration of Margazhi festival, there has been an agitiation in the area, which has given rise to a law and order problem, resulting in lathi-charge, registration of criminal cases. In the name of the religion,violation of Article 25 of the Constitution of India has been alleged. There is absolutely, no case for violation of Article 25 of the Constitution of India. Putting up a temporary shed, at a particular place, for the purpose of inviting devotees, cannot at any stretch of imagination be termed as an integral part of religion or an activity associated with religious practice.
43. In Guruvayoor Devaswom Managing Committee v. C.K.Rajan reported in 2003 (7) SCC 546, the Supreme Court, at Paragraph 58, held as follows:
"The right of a person belonging to a particular religious denomination may sometimes fall fault of Articles 25 and 26 of the Constitution of India. Only whence the fundamental right of a person is infringed by the State an action in relation thereto may be justified. Any right other than the fundamental rights contained in Articles 25 and 26 of the Constitution of India may either flow from a statute or from the customary laws. Indisputably, a devotee will have a cause of action to initiate an action before the High Court when his right under statutory law is violated. He may also have a cause of action by reason of action or inaction on the part of the State or a statutory authority; an appropriate order is required to be passed or a direction is required to be issued by the High Court. In some cases, a person may feel aggrieved in his individual capacity, but the public at large may not."
44. In Director of Settlements, A.P. and others Vs.M.R.Apparao and another reported in (2002) 4 SCC 638, the Supreme Court has set out the scope and the manner of exercise of power under Article 226 of the Constitution and in paragraph 17, it was observed as follows:-
"17. Coming to the third question, which is more important from the point of consideration of the High Court's power for issuance of mandamus, it appears that the Constitution empowers the High Court to issue writs, directions or orders in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights conferred by Part III and for any other purpose under Article 226 of the Constitution of India. It is, therefore essentially, a power upon the High Court for issuance of high prerogative writs for enforcement of fundamental rights as well as non- fundamental or ordinary legal rights, which may come within the expression "for any other purpose". The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon their discretion, they must be exercised along the recognised lines and subject to certain self-imposed limitations. The expression "for any other purpose" in Article 226, makes the jurisdiction of the High Courts more extensive but yet the Courts must exercise the same with certain restraints and within some parameters. One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus. "Mandamus" means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition (Kalyan Singh v. State of U.P.). The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law."
45. In Union of India and others Vs. C.Krishna Reddy reported in (2003) 12 SCC 627, the Supreme Court held that only in the case of failure, on the part of the authority in discharging his statutory duty and obligation, a direction can be issued. There must be a legal duty imposed on the authority and the aggrieved party must have a legal right, under the statute, to enforce the performance and at paragraph 13, the Apex Court held as follows:- "13. It is well settled by a catena of decisions of this Court that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of the writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. Therefore, in order that a mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. [See Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh, AIR para 15, Lekhraj Sathramdas Lalvani v. N.M. Shah, Dy. Custodian cum Managing Officer and Umakant Saran (Dr.) v. State of Bihar.]"
46. Again, the Supreme Court in State of Uttar Pradesh and another Vs. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and Others reported in (2008) 12 SCC 675, at paragraphs 45 and 46,observed as follows:
"...The petitioners had prayed for a writ of mandamus which presupposes a legal right in favour of the applicant. Such right must be a subsisting right and enforceable in a court of law. There must be corresponding legal duty on the part of the respondent Corporation or the Government which required the Corporation or the Government "to do that which a statute required it to do". No such right of absorption has been shown by the petitioners. Nor could any such corresponding duty of the respondents be shown to the High Court by the employees.
46. It is well settled that a court of law can direct the Government or an instrumentality of State by mandamus to act in consonance with law and not in violation of statutory provisions."
47. In the name of religion, for a trivial matter to put up temporary arch, the petitioner has blown up the issue and sought for intervention of the entire District officials. At this juncture, it should be noted that even the contention of the panchayat that the Tahsildar, Ms.Parvathi, has demolished the arch, with the Police force, without the knowledge of the Panchayat, has not been denied by respondents 1 and 2. Even God would not command a person, to put up an arch, only at the particular place, where the school name board has been erected.
48. In W.P.No.21747 of 2010, dated 20.01.2011, relied on by the petitioner, the petitioner therein, has sought for a mandamus, directing the respondents 1 to 4, to remove the encroachment in Survey No.52, Panikkan Kuppan Village Panchayat, Panruti Taluk, Cuddalore District. In the above writ petition, the petitioner therein has contended that the fifth respondent had put up a construction, without requisite permission. In the supporting affidavit, the petitioner therein has further contended that, as per the revenue records, road in R.S.No.52, has been classified as a road promboke. The property in Survey No.75/2, measuring 30,000 sq. ft., on the east of the road, was owned by the fifth respondent, who, without applying and obtaining sanction from the panchayat, has constructed a permanent structure, measuring about 5500 sq.ft. The petitioner has further contended that the construction without permission, was illegal and that the fifth respondent has also encroached the public road, vested with the panchayat, in putting up a compound wall in Survey No.52. On the above facts, the petitioner therein, has sought for removal of encroachment. Inasmuch as there was no rebuttal on the part of the fifth respondent or from the official respondents therein, this Court taking note of Section 131(2) of the Act has issued a mandamus, as sought for.
49. The said judgment is not applicable to the facts of this case, for the reason that the 5th respondent therein, had not come forward to rebut the averments. Even the official respondents did not deny the allegation of encroachment and illegal construction on the public road. Whereas, in the case on hand, the fourth respondent school has obtained permission from the panchayat and thereafter, put up the name of the School, in the arch. Perusal of the photographs produced before this Court also clearly shows that the arch put up by the school, at the junction, would in no way, cause any hindrance to the vehicular traffic also. It is also not the case of the village panchayat, that the temporary arch, whether permanent or temporary, on the public road, regulated by the panchayat, has caused any disturbance to the general public. On the contra, the panchayat, after examining the request of the fourth respondent school, has passed a resolution in the council meeting and thereafter, accorded permission. The construction of the arch by the school, cannot be said to be unauthorised. Section 131 of the Act can be applied only, if the construction is without a valid permission from the competent authority.
50. Right to put up a temporary arch, at a particular place, cannot, at any stretch of imagination, be termed as a right, recognised in any religion or law or as an integral part of Hindu Reglion and consequently, permission granted to the fourth respondent-School, to put up an arch, cannot be said to have violated religious rights of Hindus, affecting Article 25 of the Constitution of India. Putting up of a temporary arch to welcome the devotees, at a particular place, cannot be termed as a customary right, followed by any religion.
51. The judgment in Abdul Farook Vs. Municipal Council, Perambalur and others, reported in 2009 AIR SCW 5292, is not applicable to the facts of this case.
52. Going through the entire materials, this Court is of the view that an intolerant executive of the managing committee of the temple, has magnified the issue of putting up a temporary arch, during a very short period, between the first and second week of the year, for the purpose of celebrating Marghazhi festival, which has lead to lathi charge, law and order problem, and created disharmony in the area. The contention of the petitioner that the school had put up the arch, in the first week of January, during "Margazhi" festival is per se false, when admittedly, the arch has come up, only after the permission, accorded by the panchayat in March' 2008. The petitioner has made false averments in the writ petition. After the Margazhi festival was over, in the first week or second week of January, it is the petitioner, executive member, who has started the trouble, in March 2002, objecting to the arch and created problem. Having clear knowledge of the fact that the panchayat has granted permission to the fourth respondent school, to put an arch, and also questioned its competence to grant such permission, the petitioner has alleged that the fourth respondent has put up the arch, without permission. Criminal cases have been registered against the parties. The District Administration including the Superintendent of Police, RDO and other officials have to spend time to bring an amicable settlement and the trivial issue has divided the people, belonging to different religion living in the locality, thereby affecting peace and tranquility, in the name of religion and such action cannot be approved by this Court and for the conduct of the petitioner, stated supra, this Court deems it fit to impose a cast of Rs.10,000/- (Rupees ten thousand only) to be paid to an institution, situated in Kanyakumari District for blind or deaf and dumb or mentally retarded, within a period of two weeks from the date of receipt of a copy of this order. If the cost is not paid, it is open to the District Administration to realise the amount, as if it is due under Revenue Recovery Act.
53. Writ against resolution is not maintainable. To invoke the remedy under Article 226 of the Constitution of India, the petitioner has to plead and prove infringement of any constitutional or statutory or legal or customary right, recognised under law. The petitioner has failed to establish a right, much less a constitutional right to invoke the extraordinary remedy. In the light of the above discussion, this Court is of the view that the petitioner, cannot at any stretch of imagination be termed as an aggrieved person. The writ petition is dismissed with costs. Consequently, connected miscellaneous petition is also dismissed.
skm To
1.The District Collector, Kanyakumari District, Nagercoil.
2.The Block Development Officer (Panchayats), Munchirai Panchayat Union, Puthukadai Post, Kanyakumari District.