Madras High Court
A. Radhakrishnan vs The Chief Electoral Officer on 2 April, 2019
Equivalent citations: AIRONLINE 2019 MAD 2296
Author: S.Manikumar
Bench: S.Manikumar, Subramonium Prasad
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.04.2019
CORAM:
THE HON'BLE MR. JUSTICE S.MANIKUMAR
and
THE HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
W.P.No.17768 of 2016
A. Radhakrishnan ... Petitioner
Vs.
1. The Chief Electoral Officer,
Secretary to Government,
Public (Election) Department,
Secretariat, Chennai – 600 009.
2. The Chief Secretary,
Government of Tamilnadu,
Secretariat, Fort St.George,
Chennai – 600 009.
3. The Secretary to Government,
Revenue Department,
Government of Tamilnadu,
Secretariat, Fort St.George,
Chennai – 600 009.
4. The Secretary to Government,
Home Department,
Government of Tamilnadu,
Secretariat, Fort St.George,
Chennai – 600 009.
5. The Secretary to Government,
Highways Department,
Government of Tamilnadu,
Secretariat, Fort St.George,
Chennai – 600 009.
http://www.judis.nic.in
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6. The Secretary to Government,
Department Rural Development,
Government of Tamilnadu,
Secretariat, Fort St.George,
Chennai – 600 009.
7. The Secretary to Government,
Department Municipal Administration,
Government of Tamilnadu,
Secretariat, Fort St.George,
Chennai – 600 009.
8. The Commissioner of Land Administration,
Department of Land Administration,
Chepauk, Chennai – 600 005.
9. The Regional Officer,
National Highways Authority of India,
Sri Tower, 3rd Floor,
D.P.34, SP Industrial Estate,
Guindy, Chennai – 32. ... Respondents
PRAYER: The Writ Petition has been filed under Article 226 of the
Constitution of India, praying in the nature of Writ of Mandamus, to direct
the respondents to take action to remove the flagpoles erected in the public
places permanently and further direct the respondents to put complete ban
or erecting the flagpoles permanently or temporarily in the public places all
over the state of Tamilnadu by considering the petitioner's representation
dated 07.05.2016.
For Petitioner : Mr.Yogaraj
for Mr.R.Radhakrishnan
For 1st Respondent : Mr.Niranjan Rajagopal
http://www.judis.nic.in
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For R2 to R8 : Mr.E.Manoharan
For 9th Respondent : No appearance
ORDER
(Order of the Court was made by S.MANIKUMAR, J.) The petitioner has sought for a Mandamus directing the respondents to take action to remove the flagpoles erected in the public places permanently and further direct the respondents to put complete ban on erecting the flagpoles permanently or temporarily in the public places all over the state of Tamilnadu by considering the petitioner's representation dated 07.05.2016.
2. At the outset, when the matter came up “for admission”, after considering the statutory provisions in various enactments namely, Tamil Nadu Highways Act, 2001 (Sections 26 and 30), Chennai City Municipal Corporation Act, 1919 (Sections 220 and 223), Tamil Nadu District Municipalities Act, 1920 (Sections 180, 182, 183 and 186), the Tamil Nadu Panchayats Act, 1994 (Section 220), Tamil Nadu Panchayats (Prohibition against obstruction in or over Public Roads, removal of encroachments, http://www.judis.nic.in 4 etc.,) Rules, 2000, a Hon'ble Division Bench of this Court (Hon'ble Mr.Justice M.Sathyanarayanan and Hon'ble Mr.Justice P.Rajamanickam), on 3.12.2018, ordered as hereunder:-
"The writ petition is filed as a Public Interest Litigation and it is a case of the petitioner that in the light of ensuing election to various Legislative Assembly Constituencies in the State of Tamil Nadu, the Election Commission had issued a copy of Conduct and Guidelines and one of which is removal of flagpole of all political parties, which came to be erected in the public places. It is also the case of the petitioner that erecting of flagpoles temporarily during conferences, public meetings by using powered drillers endanger underground telecom cables etc., and it is also causing hazard to road users, especially to pedestrians and despite the said illegalities taking place right in front of the eye of the statutory authorities concerned, no action has been taken and therefore, came forward to file this writ petition.
2. The petitioner / Party-in-Person would submit that on account of erection of flagpoles by taking a small trench by using powered drillers, underground optical cables get affected, which will lead to telecommunication hindrance. In the event of erecting poll, there is a likelihood that it may also fall on the road users and pedestrians and despite statutory authorities aware of the same, they deliberately turn a blind eye to the illegalities that takes place in front of the own eyes and therefore, prays for appropriate orders,
3. Per contra, Mr.Niranjan Rajagopal, learned counsel accepts notice on behalf of the 1st respondent and would submit that since as of now, no election is going to place place, he may come out with a response and prays for time and so also Mr.R.Udhayakumar, learned Additional Government Pleader, who accepts notice on behalf of respondents 2 to 8.
4. This Court has considered the submission made by the petitioner / Party-in-Person and also perused the relevant Statutes.
5. It is relevant to extract the following provisions:
The Tamil Nadu Highways Act, 2001 : Section 26 and 30
26. Prevention of unauthorised occupation of highway.-(1) No http://www.judis.nic.in 5 person shall occupy or encroach on any highway within the highway unauthorised occupation of boundaries. highway. (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 aid 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 awning 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:
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) 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.
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30.Restoration of property to original state where it is dealt with in contravention of section 9.- (1) Where any person has erected any building or made or extended any excavation or carried out any mining or other operation or made any material change in the use of land, or constructed, formed or laid out any work of means of access or any other acts in contravention of section 9 or in contravention of any of the terms and conditions of the permission granted under sub-section (2) of section 26, the 'Highways authority may, by order, require such person to restore the land or building to its original condition or to bring the land or building in conformity with the terms and conditions specified in such permission, within such period as may be specified in the order. (2) If such person fails to comply with such order within the period specified in the order, the Highways authority may itself take such measures as appear to it to be necessary to give effect to the order and recover the cost thereof from such person as an arrear of land revenue.
Chennai City Municipal Corporation Act, 1919:
Section 220 & 223:
220. Prohibition against obstructions in streets.—No one shall build any wall or erect any fence or other 5[obstruction or projection or make any encroachment] in or over any street 6[or any public place, the control of which is vested in the corporation] except as hereinafter provided.
223. Power to allow certain projections and erections.—(1) The Commissioner may grant a licence, subject to such conditions and restrictions as he may think fit, to the owner or occupier of any premises—
(a) to put up or continue to have verandas, balconies, sun-hades, weather frames and the like, to project over a street.Or (b) in streets in which the construction of arcades has been sanctioned by the council, to put up or continue to have an arcade, or to construct or to continue to have any step or drain-covering necessary for access to the premises].
(2) With the concurrence of the commissioner of police, the commissioner may grant a licence. Subject to such conditions and restrictions as he may think, fit, for any temporary construction in any street or in any public place, the control of which is vested in the corporation.
(3) No licence shall be granted under sub-section (1) if the projection http://www.judis.nic.in 7 or construction is likely to be injurious to health or cause public inconvenience or otherwise materially interfere or result in material interference with the use of the road as such.
(4) On the expiry of any period for which a licence has been granted under this or after due communication of an order of suspension or revocation of such licence, the commissioner may, without notice, cause any projection or construction put up under sub-section (1) or (2) to be removed, and the cost of so doing shall be recoverable in the manner provided in section 387 from the person to whom the licence was granted.
1[(5) The council shall have power to lease road sides and street margin vested in the corporation for occupation on such terms and conditions and the such period as it may fix :
Provided that no such lease for any term exceeding three years shall be valid unless the sanction of the State Government therefore shall have been first obtained :
Provided further that if the State Government consider that any occupation of a road side or street margin under a lease granted by the council under this section is likely to be injurious to health or cause public inconvenience or otherwise materially interfere with the use of the road side or street margin as such, the State Government may direct the council to cancel or modify the lease and the council shall thereupon cancel or modify the lease accordingly.] 223-A. Power of council to set up hoardings and levy fees—Subject to the provisions of the 3[Tamil Nadu] Open Places (Prevention of Disfigurement) Act, 1959 (3[Tamil Nadu] Act 2 of 1959) and sections 129-A to 129-F of this Act, the commissioner may, with the sanction of the council, set up, for the exhibition of advertisements, hoardings, erections or other things in suitable place owned by, or vested in the corporation and may permit any person to use any such hoarding, erection or thing on payment of such fee as may be prescribed by regulations made by the council in this behalf.
Explanation 1.—For the purposes of sections 129-D and 129-E the person who has been permitted to use any hoarding, erection or thing under this section shall be deemed to be the owner or the person in occupation of http://www.judis.nic.in 8 such hoarding, erection or thing.] Explanation II.—For the removal of doubts, it is hereby declared that any fee payable by any person to use any hoarding, erection or thing under this section shall be deemed to be the owner or the person in occupation of such hoarding, erection or thing.] Tamil Nadu District Municipalities Act, 1920:
Sections 180, 182, 183, 186
180. Prohibition against obstructions in or over streets .—No one shall build any wall or erect any fence or other obstruction, or projection, or make any encroachment in or over any street, except as hereinafter provided.
182. Removal of encroachments .— (1) The 1 [Executive Authority] may, by notice, require the owner or occupier of any premises to remove or alter any projection, encroachment or obstruction (other than a door, gate, bar or ground-floor window) situated against or in front of such premises and in or over any street. (2) If the owner or occupier of the premises proves that any such projection, encroachment or obstruction has existed for a period sufficient under the law of limitation to give any person a prescriptive title thereto or that it was erected or made with the permission or licence of any municipal authority duly empowered in that behalf, and that the period, if any, for which the permission or licence is valid has not expired, the Municipal Council shall make reasonable compensation to every person who suffers damage by the removal or alteration of the same.
183. Power to allow certain projections and erections .— (1) The Council may grant a licence, subject to such conditions and restrictions as it may think fit, to the owner or occupier of any premises to put up verandas, balconies, sunshades, weather-frames and the like, to project over a street, or in streets in which the construction of arcades has been sanctioned by the Council, to put up an arcade; or to construct any step or drain-covering necessary for access to the premises.
186. Prohibition against making holes and causing obstruction .—(l) No person shall make a hole or cause any obstruction in any street, unless, he previously obtains the permission of the 1 [Executive Authority] and complies with such conditions as that officer may impose. (2) When such http://www.judis.nic.in 9 permission is granted, such person shall, at his own expense., cause such hole or obstruction to be sufficiently fenced and enclosed until the hole or obstruction is filled up or removed and shall cause such hole or obstruction to be sufficiently lighted during the night.
Tamil Nadu Panchayats Act, 1994 Section 220:
220. (I) Save as otherwise expressly provided in or may be prescribed under this Act, every application for any licence or permission under this Act or any rule, by-law or regulation made thereunder, or for the renewal thereof, shall be made not less than thirty and not more than ninety days before the earliest date with effect from which, or the commencement of the period (being a year or such less period as is mentioned in the application) for which the licence or permission is required. (2) Save as aforesaid, for every such licence or permission, fees may be charged on such units and at such rates as may be fixed by the panchayat provided that the rates shall not exceed the maximum, if any, prescribed. (3) Save as aforesaid, if orders on an application for any such licence or permission are not communicated to the applicant within thirty days or such longer period as may be prescribed in any class of cases after the receipt of the application by the executive authority of the village panchayat or the commissioner or the chief executive officer. The application shall be deemed to have been allowed for the period, if any, for which it would have been ordinarily allowed and subject to the law, rules, by-Iaws and regulations and all conditions ordinarily imposed. (4) The acceptance of the pre-payment of the fee for any such licence or permission shall not entitle the person making such pre-payment to the licence or permission, but only to a refund of the fee in case of refusal of the licence or permission. (5) If an act, for which any such licence or permission is necessary is done without such licence or permission, or in a manner inconsistent with the terms of the licence or permission obtained, then- (a) the executive authority of the village panchayat or the commissioner or the chief executive officer may by notice require the person so doing such act to alter, remove, or as far as practicable restore to its original state, the whole, or any part of any property, movable or immovable, public or private affected thereby, within http://www.judis.nic.in 10 a time to be specified in the notice; and further, . (b) if no penalty has been specially provided in this Act for so doing such act the person so doing it shall be punishable with fine not exceeding fifty rupees for such offence. (6) Whenever any person is convicted of an offence in respect of the failure to obtain any such licence or permission, the Magistrate shall, in addition to any fine which may be imposed, recover summarily and pay over to the panchayat the amount of the fee chargeable for the licence or permission, and may, in his discretion, also recover summarily and pay over to the panchayat such amount, if any as he may fix as the costs of the prosecution.
Explanation:- The recovery of the fee for a licence or permission under this subsection shall not entitle the person convicted to the licence or permission.
Tamil Nadu Panchayats (Prohibition against obstruction in or over Public Roads, removal of encroachments, etc.,) Rules, 2000:
15. Restriction on making hole, etc., on roads, (1) The Village Panchayat or Panchayat Union Council shall earmark certain places with ready made holes for erecting poles in any public road vested with them.
(2) No person shall make a hole, or cause any obstruction in any public road other than these places specified in sub-rule (1) unless he previously obtains the permission of the Executive Authority or Commissioner and complies with such conditions as the Executive Authority or Commissioner may impose.
(3) When such permission is granted, such person shall, at his own expense, cause such hole or obstruction to be sufficiently fenced and enclosed until the hole or obstruction is filled up or removed and shall cause such hole or obstruction to be sufficiently lighted during the night.
(4) If any person contravenes the provisions of this rule, the Executive Authority or Commissioner shall fill up the hole or remove the obstruction or cause the hole or obstruction to be lighted, as the case may be, and may free cover the cost of so doing from such person.
6. A perusal and consideration of the above cited statutory provisions and rules would prima facie disclose that erection of flagpoles by any political parties or organisation without license or permission is http://www.judis.nic.in 11 prohibited. But the said provisions are complied with rather in breach and in by way of compliant and the Local body authorities concerned, for the reason best known to them, turning a blind eye to the said unlawful activities, the result being, pedestrians as well as the road users are put to grave risk and peril. In the event of those flag polls and other temporary constructions likely to fall down, ultimately, it may be the duty of the State to compensate them without putting any liability and responsibility on the violators. Therefore, it is for the Local Body concerned to ensure that no flagpoles are erected on the road margin, especially on the platforms or arches put up across the roads without prior permission / license as contemplated under the said provisions.
7. Call on 09.01.2019. Status reports / counter affidavits of the respondents with supporting documents, if any, by then.”
3. Thereafter, on 28.01.2019, we passed the following order:-
This Court while entertaining the writ petition has passed a detailed order on 03.12.2018, as to the alleged menace of erecting flag polls near the side of the State / National Highways etc., and directed the official respondents to file status report and counter affidavit.
2. When the matter is listed today, Mr.E.Manoharan, learned Additional Government Pleader appearing for the State Government would submit that flag polls in question has been removed by the Collector of Salem District and seeks further time to file status report in that regard. The erection of flag polls near the road / State and National Highways is going on for quite some time and therefore, this Court requires the response of the 1st respondents also.
Call on 18.02.2019 with supporting documents, if any, by then.
4. Subsequently, after extracting the earlier orders, and considering the submissions, on 8.3.2019, this court passed the following order:-
"3. Though directions have been granted on 03.12.2018 to the http://www.judis.nic.in 12 respondents to file a status reports / counter affidavits, no report or counter affidavit has been filed.
4. On 28.01.2019, when the matter came up for further hearing, having regard to the submission of the learned Additional Government Pleader that the flag poles in question have already been removed by the Collector of Salem District, and taking note of the request to grant time to file a status report, the this Court passed another order on 28.01.2019, as hereunder.
This Court while entertaining the writ petition has passed a detailed order on 03.12.2018, as to the alleged menace of erecting flag polls near the side of the State / National Highways etc., and directed the official respondents to file status report and counter affidavit.
2. When the matter is listed today, Mr.E.Manoharan, learned Additional Government Pleader appearing for the State Government would submit that flag poles in question have been removed by the Collector of Salem District and seeks further time to file status report in that regard. Removal of flag poles near the road / State and National Highways is going on for quite some time and therefore, this Court requires the response of the 1st respondents also.
Call on 18.02.2019 with supporting documents, if any, by then.
5. Today, when the matter came up for further hearing, on the basis of the instructions, Mr.E.Manoharan, learned Additional Government Pleader submitted that pursuant to the order of this Court made in W.P.No.17768 of 2016 dated 03.12.2018, extracted supra, Additional Secretary to the Government, Rural Development and Panchayat Raj Department, Chennai, 6th respondent herein, has issued instructions to the Director of Rural Development and Panchayat Raj Department, Chennai to furnish the details of the action taken report to the Government and to file the status report / counter affidavit. Following which, the Director of Rural Development and Panchayat Raj Department, Chennai has issued a http://www.judis.nic.in 13 circular to all the District Collectors to take immediate action, as per the directions of this Court in W.P.No.17768 of 2016 dated 03.12.2018, so as to regulate erection of flag poles on the road margin, especially on the platforms or arches, etc. and send an action taken report in this regard to the Directorate immediately.
6. Letter dated 07.02.2019 of the Additional Secretary to the Government, Rural Development and Panchayat Raj Department, Chennai, 6th respondent and the circular dated 13.02.2019 of the Director of Rural Development and Panchayat Raj Department, Chennai, to all the District Collectors are reproduced hereunder.
Rural Development and Panchayat Raj Department Secretariat, Chennai - 9.
Website : www.tnrd.gov.in Telephone: (044)-25675135 Fax No.: (044)-25675849 Letter No.28383/PR.2/2018-1 dated 07.02.2019 From Dr.Pinky Jowel, IAS, Additional Secretary to Government.
To The Director of Rural Development and Panchayat Raj, Chennai - 15.
Sir, Sub: RD&PR Department - W.P.No.17768 of 2016 filed by Thiru.A.Radhakrishnan, with a prayer to take action to remove the flagpoles erected in the public places permanently and to put ban on erection of flagpoles in public places – Regarding.
Ref: Orders passed by the High Court of Madras dated 3.12.2018 in W.P.No.17768/2016.
----
I am directed to enclose a copy of the High Court cited, wherein the High Court has observed as follows:-
In the event of those flag polls and other temporary constructions likely to fall down, ultimately, it may be the duty of the State to compensate them without putting any http://www.judis.nic.in 14 liability and responsibility on the violators. Therefore, it is for the Local Body concerned to ensure that no flagpoles are erected on the road margin, especially on the platform or arches put up across the roads without prior permission / license as contemplated under the said provisions.
2. I am therefore to request you file status report/ Counter Affidavit in respect of RD&PR Department and send the Action taken report to Government immediately.
Yours faithfully, sd/-
for Additional Secretary to Government
From To
Director of Rural Development and The District Collector,
Panchayat Raj, All District.
Panagal Building
Saidapet,
Chennai - 15
Roc.No.7575/2019/PRI 1-4, Dated: 13.02.2019. Sir, Sub: Rural Development and Panchayat Raj Department - W.P.No.17768 of 2016 filed by Thiru.A.Radhakrishnan, with a prayer to take action to remove the flagpoles erected in public places permanently and to put ban on erection of flagpoles in public places - Regarding.
Ref: 1. Orders passed by the Hon'ble High Court of Madras, dt.3.12.2018 in W.P. No.17768/2016
2. The Government letter No.28383/ PR 2 /2018
- 1 dated:07.02.2019.
3. The Government letter No.28383/ PR 2 /2018
- 1 dated:08.02.2019.
***** I invite kind attention to the references cited. In the reference 1st cited, the Hon'ble High Court of Madras in W.P.No.17768/2016 has ordered as follows:
"A perusal and consideration of the above cited statutory provisions and rules would prima facie disclose that erection of flagpoles by any political parties or organisation without license or permission is prohibited. But the said provisions are complied with rather in breach and in by way of compliant and the Local body authorities concerned, for the http://www.judis.nic.in 15 reason best known to them, turning a blind eye to the said unlawful activities, the result being, pedestrians as well as the road users are put to grave risk and peril. In the event of those flag polls and other temporary constructions likely to fall down, ultimately, it may be the duty of the State to compensate them without putting any liability and responsibility on the violators. Therefore, it is for the Local Body concerned to ensure that no flagpoles are erected on the road margin, especially on the platforms or arches put up across the roads without prior permission / license as contemplated under the said provisions."
Hence, I request you to take immediate action on the above matter, so as to regulate the erection of flag poles on the road margin, especially on the platforms or arches, etc. and send an action taken report in this regard to this Directorate immediately.
Encl.: Ref.1 for Director Copy to:
1. The Addl. Chief Secretary to Govt., RD & PR Dept., Chennai-9.
2. Thiru.M.Manoharan, Addl. Govt. Pleader, Govt. Pleader's Office, Law Officer's Block, High Court, Chennai - 104.
3. The Assistant Director (Panchayats), All District.
7. That apart, Mr.Niranjan Rajagopal, learned counsel appearing for the Chief Electoral Officer, Chennai, 1st respondent submitted that in the matter of prevention of defacement of property and other campaign related items, including erection of flagpoles and banners, as advertisements during the elections, instructions have been issued by the Election Commission of India dated 18.01.2012 to all the Chief Secretaries, States and Union Territories and the Chief Electoral Officers of all States and Union Territories. Instructions dated 18.01.2012 of the Election Commission of India reads thus.
ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110 001 No.437 /6/INST/2012-CC&BE Dated:18th January, 2012 To
1) The Cabinet Secretary, Cabinet Secretariat, http://www.judis.nic.in 16 Rashtrapati Bhawan, New Delhi.
2) The Chief Secretaries of all States and UTs.
3) The Chief Electoral Officers of all States and UTs.
Subject- Prevention of defacement of Property and other campaign related items revised instructions - regarding.
Sir/Madam I am directed to state that on the announcement of the General Elections to the Legislative Assemblies of the States of Goa, Manipur, Punjab, Uttar Pradesh and Uttarakhand, the provisions of Model Code of Conduct have come into force w.e.f. 24th December, 2011. The Commission has decided to reiterate its instructions issued vide its letter no. 3/7/2008/JS-II dated 7th October, 2008 (copy enclosed) contained in Para 5 under the heading ‘DEFACEMENT OF PRIVATE PLACES’, as under: -
"Sub-para (d) “Subject to any restrictions under any local law or any court orders in force, the political parties, candidates, their agents, workers and supporters may put up banners, buntings, flags, cut-outs, on their property, provided they do so on their own volition, voluntarily and without any pressure from any party, organization or person, and provided further that these do not cause any inconvenience in any manner to anyone else. If such display of banners, flags etc. aims to solicit vote for any particular candidate, then the provisions of Section 171H of IPC would be attracted and would have to be followed. Section 171H of the IPC stipulates that whoever without the general or special authority in writing of a candidates incurs or authorizes expenses on account of the holding of any public meeting or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidates, shall be punished with fine which may extend to five hundred rupees: Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate.” Yours faithfully, sd/-
(K.N.BHAR) SECRETARY ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110 001 No.3/7/2008/JS-II Dated:7th October, 2008 To
1) The Secretary to Government of India, Ministry of Home Affairs, http://www.judis.nic.in 17 New Delhi - 110 001.
2) The Chief Secretaries of all States and UTs.
3) The Chief Electoral Officers of all States and UTs.
Subject- Prevention of defacement of Property and other campaign related items - revised instructions - regarding.
Sir, I am directed to invite a reference to the Commission’s letter No.3/7/2007/JS-II, dated 16th October, 2007, regarding prevention of defacement of property in connection with election campaign.
2. In the past, the Commission has suggested the enactment of special laws by state governments for dealing with defacement of properties effectively. Some states have enacted special legislations to govern and regulate defacement of property, While the other states have legislation that either only cover specific areas, like municipalities etc., or have no legislation at all. A tabular statement on respective positions obtaining in the states in this respect based on the information available in the Commission is enclosed in the schedule appended to this circular (marked as Annexure-I). Since a uniform law throughout the country is not available, what is enforceable differs from state to state. Keeping in view the forthcoming general election to the LokSabha due in 2009, it has become necessary to lay down, for smooth conduct of campaign during elections and for clear understanding of all authorities who have the responsibility for the implementation at the field level as also of the observers who are deputed to oversee the elections in different states/constituencies, a comprehensive set of guidelines with respect to defacement of property.
3. After considering all aspects of the matter in depth, the Commission has, in supersession of the earlier instructions, laid down the following directions, to be followed by political parties, candidates, individuals and organizations etc. during the election period:
Defacement of Public Places
4 (a) No wall writing, pasting of posters/papers or defacement in any other form, or erecting/displaying of cutouts, hoardings, banners, flags etc. shall be permitted on any Government premise (including civil structures therein). For this purpose a Government premise would include http://www.judis.nic.in 18 any Govt. office and the campus wherein the office building is situated.
(b) If the local law expressly permits or provides for writing of slogans, displaying poster, etc., or erecting cut-outs, hoardings, banners, political advertisement, etc., in any public place (as against a Govt. premise) on payment or otherwise, this 46 may be allowed strictly in accordance with the relevant provisions of the law and subject to Court orders, if any on this subject. It should be ensured that any such place is not dominated/monopolized by any particular party(ies) or candidate(s). All parties and candidates should be provided equal opportunity in this regard.
(c) If there is a specifically earmarked place provided for displaying advertisements in a public place, e.g. bill boards, hoardings etc. and if such space is already let out to any agency for further allocation to individual clients, the District Election Officer through the municipal authority concerned, if any, should ensure that all political parties and candidates get equitable opportunity to have access to such advertisement space for election related advertisements during the election period.
Defacement of Private Places
5. (a) In the States where there is no local law on the subject, and subject to the restrictions under the law where there is a law, temporary and easily removable advertisement materials, such as flags and banners may be put up in private premises with the voluntary permission of the occupant. The permission should be an act of free will and not extracted by any pressure or threat. Such banner or flag should not create any nuisance to others. Photo-copy of the voluntary permission in writing obtained in this connection should be submitted to the Returning Officer within 3 days of putting up the flags and banners in such cases in the manner prescribed in sub para(c) below.
(b) If the local law does not expressly permit wall writing, pasting of poster, and similar other permanent/semi-permanent defacement which is not easily removable, the same shall not be resorted to under any circumstances, even on the pretext of having obtained the consent of the owner of the property. This will also apply in the states where there is no local law on the subject of prevention of defacement of property.
http://www.judis.nic.in 19
(c) Where the local law expressly permits wall writings and pasting of posters, putting up hoardings, banners, etc. on private premises with the owner’s permission, the contesting candidates or the political parties concerned shall obtain prior written permission from the owner of the property and submit photocopies of the same within3days to the Returning Officer or an officer designated by him for the purpose, together with a statement in the enclosed proforma (marked as Annexure-2). The statement in such cases and in the cases mentioned in sub-para (a) above should clearly mention therein the name and address of the owner of the property from whom such permission has been obtained together with expenditure incurred or likely to be incurred for the purpose. Nothing inflammatory or likely to incite 47 disaffection amongst communities shall be permissible in such writings/display. The expenditure incurred in this mode on specific campaign of candidate(s) shall be added to the election expenditure made by the candidate. Expenditure incurred on exclusive campaign for a party without indicating any candidate shall not be added to candidate’s expenditure. The contesting candidate shall furnish such information village/locality/town-wise, to the Returning Officer, or the authorized officer within 3 days of obtaining the requisite permission, for easy checking by the Returning Officer or the Election Observer or any officer connected with the conduct of elections.
(d) Subject to any restrictions under any local law or any court orders in force, the political parties, candidates, their agents, workers and supporters may put up banners,buntings flags, cut-outs, on their own property, provided they do soon their own volition, voluntarily and without any pressure from any party, organization or person, and provided further that these do not cause any inconvenience in any manner to anyone else. If such display of banners, flags etc. aims to solicit vote for any particular candidate, then the provisions of Section 171H of the IPC would be attracted and would have to be followed. Section 171H of the IPC stipulates that whoever without the general or special authority in writing of a candidate incurs or authorizes expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the http://www.judis.nic.in 20 election of such candidate, shall be punished with fine which may extend to five hundred rupees: Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate.
DEFACEMENT OF HALLS/AUDITORIUMS AND OTHER PUBLIC PROPERTIES
6. In the case of Halls/Auditoriums/Meeting venues owned/controlled by the Government/ local authorities/PSUs/ Cooperatives, if the law/guidelines governing their use do not preclude political meetings therein, there is no objection to it. It shall be ensured that the allocation is done on equitable basis and that there is no monopolization by any political party or candidates. In such venues, displaying of banners, buntings, flags, cut-outs, may be permitted during the period of meetings subject to any restrictions under the law/ guidelines in force. Such banners, flags, etc. shall be got removed by the party/individual who used the premises immediately after conclusion of the meeting, and in any case within a reasonable period after the meeting is over. Permanent/Semi-Permanent defacement such as wall writing/pasting of posters etc. shall not be permitted in such premises.
7. If any political party/association/candidate/person indulges in defacement of any property in violation of the local law, if any, or the above instructions, the Returning Officer/District Election Officer shall issue notice to the offender for removing the defacement forthwith. If the political party/association/candidate/person does not respond promptly, the district authorities may take action to remove the defacement, and the expenses incurred in the process shall be recovered from the political party/ association/candidate/person responsible for the defacement. Further, the amount also shall be added to the election expenditure of the candidate concerned, and action should also be initiated to prosecute the offender under the provisions of the relevant law (under the law relating to prevention of defacement, if any, or under the provisions of the general law http://www.judis.nic.in 21 for causing willful damage to the property of others).
DEFACEMENT OF VEHICLES
8. (a) In private vehicles, subject to the provisions of the Motor Vehicles Act, Rules thereunder and subject to court orders in force, if any, flags and stickers may be put on the vehicles by the owner of the vehicle on his own volition, in such a manner that they do not cause any inconvenience or distraction to other road users. If such display of flags and stickers aims to solicit vote for any particular candidate, then the provisions of Section 171H of the IPC would be attracted and would have to be followed.
(b) On commercial vehicles, display of any flag, sticker etc. shall not be permitted, unless such vehicle is a vehicle validly used for election campaign after obtaining the requisite permit from the District Election Officer/Returning Officer and the display thereof in original on the wind screen.
(c) External modification of vehicles including fitting of Loudspeaker thereon, would be subject to the provisions of the Motor Vehicles Act/Rules and any other Local Act/Rules. Vehicles with modifications and special campaign vehicles like Video Rath etc., can be used only after obtaining the requisite permission from the competent authorities under the Motor Vehicles Act.
OTHER CAMPAIGN RELATED ITEMS
9. Subject to accounting for the expenditure, the following may be permitted:-
(a) In processions and rallies etc., flags, banners, cutouts etc. can be carried subject to local laws and prohibitory orders in force;
(b) In such procession, wearing of party/candidate supplied special accessories like cap, mask, scarf etc. may be permitted. However, supply of main apparels like saree, shirt, etc. by party/candidate is not permitted.
(c) Educational institutions including their grounds {whether Govt.
aided, private or Govt. shall not be used for political campaigns and rallies.
10. The Chief Electoral Officers are requested to bring the http://www.judis.nic.in 22 directions of the Commission to the notice of the District Election Officers, Returning Officers and all other election related authorities, and all political parties in the State, including State units of recognized National and State parties, and all registered un-recognized parties based in the State, and also the contesting candidates (at the time of elections) for information and compliance.
11. Please acknowledge receipt of this letter. The Chief Electoral Officers may kindly confirm that action as required above has been taken.
Annexure-1 Defacement of Properties – Law Sl. No. Name of State/ UT Name of Act/Rule Extent of applicability
1. Andhra Pradesh The Andhra Pradesh It extends to the entire Prevention of Disfigurement State.
of Open Places and
Prohibition of Obscene and
Objectionable Posters and
Advertisements Act, 1997
2. Arunachal Pradesh The Arunachal Pradesh It extends to the entire
Prevention of Defacement of State.
Property Act, 1997.
3. Bihar The Bihar Prevention of It extends to the entire
Defacement of Property Act, State.
1985.
4. Chhattisgarh No separate law/Act framed It extends to the entire
by the State. But the State.
Madhya Pradesh
SampattiVirupanNivaranAdhi
niyam, 1994 is applicable in
the state.
5. Goa The Goa Prevention of It extends to the entire
Defacement of Property Act, State.
1988 as amended vide Act of
1992 and 2001.
6. Haryana The Haryana Prevention of It extends to the entire
Defacement of Property Act, State.
1989 as amended vide Act of
1996.
7. Himachal Pradesh The Himachal Pradesh Open It extends to the entire
Places (Prevention of State and come into
Disfigurement) Act, 1985. force in the areas comprised in the Municipal Corporation of Shimla at once and shall come into force in the remaining part of the State on such date http://www.judis.nic.in 23 Sl. No. Name of State/ UT Name of Act/Rule Extent of applicability as the State Govt. may by notification, appoint.
8. Jharkhand No separate law/Act but the It extends to the entire Bihar Prevention of State.
Defacement of Property Act, 1985 is applicable in the state.
9. Jammu &Kashmir The Jammu & Kashmir It extends to the entire Prevention of Defacement of State.
Property Act No. XIX of 1985.
10. Karnataka The Karnataka Open Places It extends to Bangalore, (Prevention of Mysore, Hubli, Dharwar, Disfigurement) Act, 1981 as Mangalore and Belgaun amended vide Act of 1983. constituted or continued under the Karnataka Municipal Corporation Act – 1976, or under any other law on 05.05.81 and come into force in the Municipalities, notified areas, sanitary Boards, constituted or continued under the Karnataka Municipalities Act – 1964, or under any other law, or in any other local area, on such date, as the State Government may by notification appoint.
11. Madhya Pradesh The Madhya Pradesh It extends to the entire Sampatti Virupan Nivaran State.
Adhiniyam, 1994. It extends to the entire State.
12. Maharashtra Maharashtra Act No. VIII of Nothing is specifically 1995 – regarding prevention mentioned about the of Defacement of Property. extent of applicability.
13. Mizoram The Mizoram Prevention of It extends to the entire Defacement of Property Act, State.
1995.
14. Nagaland The Nagaland Prevention of It extends to the Defacement of Property Act, notified areas 1958. constituted under the Assam Tribal Areas (Administration of Tow Committee) regulation 1950, in any other local area or areas, on such date, as the State Govt.
may by notification may http://www.judis.nic.in 24 Sl. No. Name of State/ UT Name of Act/Rule Extent of applicability appoint.
15. Punjab The Punjab Prevention of It extends to the entire Defacement of Property Act, State.
1998.
16. Sikkim The Sikkim Prevention of It extends to the entire Defacement of Property Act, State.
1988.
17. Tamil Nadu The Tamil Nadu Open Places It extends to the entire (Prevention of State.
Disfigurement) Act, 1959, as amended vide Act of 1992.
18. Tripura The Tripura Prevention of It extends to the entire Defacement of Property Act, State and shall apply in 1976 in conjunction with the first instance to Tripura (Prevention of municipal limits of Defacement of Property) Agartala Town, but the Amendment Bill, 1998 now State Govt. may from in force in the State. time to time by notification in the official Gazette, apply to such other local areas or areas as may be specified in the notification.
19. Uttarakhand The Uttaranchal Prevention It extends to the entire of Defacement of Public State.
Property Act, 2003
20. Andaman & Nicobar The Andaman & Nicobar It extends to the entire Islands Prevention of Union Territory of the Defacement of Property Andaman and Nicobar Regulation, 1987. Islands.
21. Chandigarh UT The West Bengal Prevention It extends to the entire of Defacement of Property State.
Act, 1976 has been made applicable in Chandigarh UT.
22. Delhi The West Bengal Prevention It extends to the entire of Defacement of Property State.
Act, 1976 was made
applicable in Delhi. (A
separate act is under
consideration).
23. Pondicherry The Pondicherry Open It extends to whole of
Places (Prevention of the Union Territory of
Disfigurement) Act, 2000. the Pondicherry.
States in which there is no specific Law on the subject of Prevention of Defacement of Property http://www.judis.nic.in 25 Sl.No. Name of State / UT
1. Assam No law / Act
2. Gujarat No law / Act
3. Kerala No law / Act
4. Manipur No law / Act
5. Meghalaya No law / Act
6. Orissa No law / Act
7. Rajasthan No specific law on the subject but there is a provision in Section 198 of Rajasthan Municipalities Act, 1959 that without the consent of the owner or occupier and in case of Municipal Property, without the permission in writing of the board, affixing any poster, bill, placard or other paper or means of advertisement is punishable with fine which may extend to twenty rupees.
8. Uttar Pradesh No law / Act
9. West Bengal The earlier West Bengal Prevention of Defacement of Property Act, 1976 (West Bengal Act XXI of 1976). This Act has since been repealed.
10. Dadra & N.Haveli No law / Act
11. Daman and Diu No law / Act
12. Lakshdweep No law / Act Annexure-2 State showing the details of wall-writings / posters / hoardings / banners, etc. displayed by Shri / Smt./ Ms._________________, contesting candidate in _____________ Parliamentary Constituency / Assembly Constituency.
Name of the Village / Town / Locality _____________ S.No. Name and address of Details of Wall-Writing or Expenditure incurred or the owner of the Hoardings or Banners or likely to be incurred on private property from Poster (Size of wall the wall - writing / whom written writing / hoarding / hoarding / banner / permission has been banner / poster shall be posters, etc. obtained indicated (Rs.) http://www.judis.nic.in 26 S.No. Name and address of Details of Wall-Writing or Expenditure incurred or the owner of the Hoardings or Banners or likely to be incurred on private property from Poster (Size of wall the wall - writing / whom written writing / hoarding / hoarding / banner / permission has been banner / poster shall be posters, etc. obtained indicated (Rs.) Total
8. Writ petition has been filed in the year 2016, contending that political parties were erecting flagpoles near State / National Highways. Though instructions dated 18.01.2012 can be made applicable only when the Code of Conduct comes into force, nevertheless, the same has to be strictly implemented in the ensuing elections, both parliamentary and State elections.
9. Almost three months have elapsed from 03.12.2018, when this Court directed the respondents to file status reports / counter affidavits. Though Mr.E.Manoharan, learned Additional Government Pleader submitted that Highways has taken up the exercise of removing the flagpoles, there are no materials.
10. District Collectors of all Districts are directed to submit the status report, as to the existing of the number of poles, in their respective Districts, with or without permission and the steps taken for removal. Reports should contain all the particulars of action taken.
11. Additional Secretary to the Government, Rural Development and Panchayat Raj Department, Chennai, is directed to file a consolidated report, for all the Districts, with copies of reports submitted by the District Collectors.
12. Commission, Greater Chennai, Corporation of Chennai is also directed to file a similar status report / counter affidavit.
13. Similarly, National Highways Authority of India, Chennai, also to submit a status report and the details of action taken.
Post on 25.03.2019.”
5. Finally, on 25.03.2019, we have ordered as follows:-
"On 08.03.2019 in W.P.No.17768 of 2016, we issued the following http://www.judis.nic.in 27 directions:
10. District Collectors of all Districts are directed to submit the status report, as to the existing of the number of poles, in their respective Districts, with or without permission and the steps taken for removal. Reports should contain all the particulars of action taken.
11. Additional Secretary to the Government, Rural Development and Panchayat Raj Department, Chennai, is directed to file a consolidated report, for all the Districts, with copies of reports submitted by the District Collectors.
12. Commission, Greater Chennai, Corporation of Chennai is also directed to file a similar status report / counter affidavit.
13. Similarly, National Highways Authority of India, Chennai, also to submit a status report and the details of action taken.
2. Responding to the above, on the basis of a letter sent by the Director of Rural Development and Panchayat Raj, Panagal Building, Saidapet, Chennai - 15 in Roc. No.7575/2019/PRI 1-4 Dated 23.3.2019, Mr.E.Manoharan, learned Additional Government Pleader submitted that reports have been received from 31 districts. Out of 58,971 poles erected without permission, 58,172 poles have been removed. He further submitted that the consolidated report as on 23.3.2019 states that, 799 flag poles are still to be removed, in 31 districts. Learned Additional Government Pleader further submitted that the list does not include Chennai. During the course of hearing on the information furnished, he submitted that out 799 flag poles, 308 flag poles, have been removed.
3. As regards Chennai District, learned Additional Government Pleader submitted that the exact number of poles erected without permission and removed, is yet to be received by him. Letter dated 23.3.2019 of Director of Rural Development and Panchayat Raj, Panagal Building, Saidapet, Chennai - 15, addressed to the Additional Chief Secretary to Governemnt, Rural Development and Panchayat Raj Department, Chennai - 9, is reproduced hereunder:
From To
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28
Dr.K.Baskaran, I.A.S, The Addl. Chief Secretary to Govt.,
Director of Rural Development Rural Development and Panchayat
and Panchayat Raj Raj Dept.,
Panagal Building Chennai – 9
Saidapet, Chennai – 15
Roc. No.7575/2019/PRI 1-4, Dated 23.03.2019 Sir, Sub: Rural Development and Panchayat Raj Department -
W.P. No.17768 of 2016 filed by Thiru.A.Radhakrishnan with a prayer to take action to remove the flagpoles erected in public places permanently and to put ban on erection of flagpoles in public places – Action taken report submitted – Regarding.
Ref: 1.Orders passed by the Hon'ble High Court of Madras, dt.03.12.2018 in W.P. No.17768/2016
2.Government letter No.28383/PR.2/2018-1 dated: 07.02.2019
3.Government letter No.28383/PR.2/2018-1 dated 08.02.2019
4. DRD & PR – Ref. No. Roc. No.7575/2019/PRI 1-4, Dated: 13.02.2019
5. Orders passed by the Hon'ble High Court of Madras, dt.08.03.2019 in W.P. No.17768/2016
6. The Addl. Govt. Pleader, High Court Chennai – 104 reference dated: 12.03.2019
7. Government letter No.28383/PR.2/2018-1 dated: 18.03.2019
8. Government letter No.28383/PR.2/2018-1 dated: 19.03.2019
9. DRD & PR – Ref. No. Roc. No.7575/2019/PRI 1-4, Dated: 21.03.2019
10. Reports received from the Dist. Collectors ******* I invite kind attention to the references cited.
In the Government reference 7th and 8th cited, it has been instructed to submit the status report, as to the existing of the number of poles in the Districts, with or without permission from the competent authority and the steps taken for removal, as ordered by the Hon'ble High Court of Madras in its judgment dated 08.03.2019 in W.P. No.17768/2016.
In this regard, it is submitted that in the reference 4th cited, http://www.judis.nic.in 29 necessary instructions have already been issued to all the District Collectors to take immediate action based on the directions issued by the Hon'ble High Court of Madras - vide refernece 1st cited. The District Collectors have also been requested to give necessary directions to all the Block Development Officers to regulate the erection of flag poles on the road margin, especially on the platforms or arches and also they have been requested to send an action taken report in this regard.
Further, as ordered by the Hon'ble High Court of Madras in the reference 5th cited and also as instructed by the Government in the references 7th and 8th cited, all the District Collectors have been requested to send an action taken report on the above subject with the details of the number of poles with or without permission and the steps taken for removal - vide this Directorate reference 9th cited.
Accordingly, in the reference 10th cited, all the District Collectors have sent their reports regarding the action taken by them for the removal of flag poles in public places with the details of the number of poles with or without permission.
The reports received from all the District Collectors are enclosed herewith for submitting the same before the Hon'ble High Court of Madras.
Encl: Reports recd. from 31 Districts.
Sd/K.Baskaran, Director for Director Copy to:
Thiru E.Manoharan, Addl. Govt. Pleader, Govt. Pleader's office, Law Officer's Block, High Court, Chennai - 104.
Details of Removal of Flag Poles in Public Places in Rural Areas No. of Flag No. of Flag No. of Flag Total No. of No. of Flag Poles to Sl. poles with poles erected Name of the District Flag poles in Poles removed be No. proper without the District out of Col.5 removed permission permission (Col.5 -
6)
1 2 3 4 5 6 7
1 Kancheepuram 6360 0 6360 6360 0
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30
No. of
Flag
No. of Flag No. of Flag
Total No. of No. of Flag Poles to
Sl. poles with poles erected
Name of the District Flag poles in Poles removed be
No. proper without
the District out of Col.5 removed
permission permission
(Col.5 -
6)
2 Tiruvallur 1964 0 1964 1964 0
3 Cuddalore 3371 0 3371 3371 0
4 Villupuram 3811 0 3811 3811 0
5 Vellore 2513 0 2513 2513 0
6 Tiruvannamalai 3018 2 3016 3016 0
7 Salem 1831 0 1831 1831 0
8 Namakkal 1240 0 1240 1240 0
9 Dharmapuri 1745 0 1745 1745 0
10 Krishnagiri 597 0 597 597 0
11 Erode 1601 0 1601 1601 0
12 Tiruppur 2585 0 2585 2585 0
13 Coimbatore 2188 0 2188 2188 0
14 The Nilgiris 371 0 371 371 0
15 Thanjavur 1992 0 1992 1992 0
16 Nagapattinam 1801 0 1801 1801 0
17 Tiruvarur 1400 0 1400 1242 158
18 Tiruchirappalli 1857 213 1644 1644 0
19 Karur 849 0 849 762 87
20 Perambalur 1080 0 1080 1080 0
21 Ariyalur 1185 0 1185 1185 0
22 Pudukottai 1469 54 1415 1352 63
23 Madurai 2316 0 2316 2316 0
24 Theni 1356 0 1356 1356 0
25 Dindigul 2108 0 2108 2108 0
26 Ramanathapuram 685 0 685 685 0
27 Virudhunagar 2426 0 2426 2426 0
28 Sivagangai 1397 0 1397 1397 0
29 Tirunelveli 1678 0 1678 1678 0
30 Thoothukkudi 1312 0 1312 1312 0
31 Kanniyakumari 1134 0 1134 643 491
4. A perusal of the chart indicates that removal of flag poles has been done only in rural areas and not in urban areas. We make it clear that there is no exception, for removal of flag poles erected without permission from the competent authority, in http://www.judis.nic.in 31 Urban/Town/Municipalities/Corporations, as the case may be. The Director of Rural Development and Panchayat Raj, Panagal Building, Saidapet, Chennai - 15 and all other competent authorities are directed to take appropriate action for removal of flag poles in the abovesaid areas. They are bound to follow the Code of Conduct and the directions of this court, in letter and spirit or else, court would be constrained to arrive at a conclusion that there is prima facie violation of orders of this court and the model Code of Conduct.
5. Mr.Niranjan Rajagopalan, learned counsel for Election Commission of India, has submitted a compilation of reports received from 21 districts. The details are extracted hereunder:
Vellore District:
From To
Thiru.S.A.Raman I.A.S., The Chief Electoral Officer & Secy to Govt.,
District Election Officer & Public (Elections-VIII), Dept,
District Collector, Secretariat,
Vellore District, Chennai - 9
Vellore.
-----------------------------------------------------------------------------------------------
Roc.No.H2/20000/2018 dated: 24-03-2019 Sir, Sub: Elections-General Elections to Lok Sabha, 2019 - MCC - W.P.No.17768 of 2016 - Action taken report - reg.
Ref: Government Letter No.5261/Elec-VIII/2019-1, dated: 23-03-2019.
************ I invite kind attention to the letter cited and wish to state that the details are furnished herewith in the prescribed proforma.
Encl: Proforma Yours faithfully, District Collector, Vellore Roc.No.H2.20000/18 Collector's Office, Vellore.
Dated: 24-03-2019
PROFORMA
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32
Number of Flag Poles Steps taken for Removal
With Permission Without Permission
0 3596 All the 3596 poles have been
removed
Yours faithfully,
District Collector,
Vellore
Krishnagiri District:
From To
Thiru.S.Prabhakar, I.A.S., The Chief Electoral Officer,
District Election Officer and and Secretary to Government
District Collector, Krishnagiri. Public (Elections III) Department,
Secretariat, Chennai - 9.
Roc.6093/2019/A7 Dated: 24.03.2019
Sir,
Sub: Elections - General Elections to Lok Sabah 2019 - MCC
W.P.No.17768 of 2016 - Action taken Report - Regarding.
Ref: 1.The Chief Electoral Officer & Principal Secretary to Government Lr.No.5261/Elec.VIII/2019-1, Dated 23.03.2019.
Kind attention is solicited to the reference cited.
The report regarding removal of flag poles in State Highways, National Highways (including NHAI), and Local Bodies in Krishnagiri District is furnished below.
Number of Flag Poles Steps taken for Removal
With Permission Without Permission
0 809 All flag poles are removed
District Election Officer and
District Collector,
Krishnagiri.
Namakkal District:
"NO VOTER TO BE LEFT OUT"
From To
Tmt.M.Asia Mariam, I.A.S., The Chief Electoral Officer &
http://www.judis.nic.in
33
District Election Officer and Secretary to Govt.,
District Collector, Public (Elections. VIII) Dept.,
Namakkal Secretariat,
Chennai 600 009.
Roc: 6977/2019 A1 Dated: 24.03.2019
Sir,
Sub: Elections - GELS 2019 MCC - W.P.17768/2016 - Action taken
report - Report called for - Reg.
Ref: Govt.letter 5261/Ele.VIII/2019-1, Public (Elections.VIII) Dept.,
dated 23.03.2019.
&&&
I invite kind attention to the reference cited and wish to submit below the details of flag poles removed in Namakkal District in the prescribed format.
Number of Flag Poles Steps taken for
Removal
With Permission Without Permission
0 1763 All the flag poles were
removed
District Election Officer &
District Collector,
Namakkal
Nagapattinam District:
Date: 23.03.2019
Flag Poles Removal report under Election Model code of conduct Sl.No Name of the District Number of Flag Poles Steps taken for Removal With Without Permission Permission 1 Nagapattinam District 0 2663 2663-Removed for District Collector, Nagapattinam.
Ramanathapuram District :
From To
Thiru K.Veera Raghava Rao, I.A.S., The Chief Electoral Officer and
District Election Officer Secretary to Government,
and District Collector, Public (Elections.VIII) Department,
Ramanathapuram. Secretariat, Chennai - 600 009.
http://www.judis.nic.in
34
Roc.D2/49450/2018 Dated: 24-03-2019
Respected Sir,
Sub: ELECTIONS - General Elections to Lok Sabha 2019 - Model
Code of Conduct - W.P.No.17768 of 2016 - Removal of flag poles - Action taken report - sent - regarding. Ref: Govt. email/Letter No.5261/Elec.VIII/2019-1 dated 23-03-2019.
I invite kind attention to the reference cited and would like to state that the particulars in connection with the status report on flag poles in State Highways, National Highways (including NHAI), local bodies are furnished in the prescribed format as detailed below:-
Sl.No Name of the Department Number of Flag Poles Steps taken for Removal With Without Permission Permission
1. State Highways - - -
2. National Highways - - -
3. Local Bodies --- --- ---
Village Panchayats --- 685 685 flag poles removed.
Town Panchayats --- 41 41 flag poles
removed.
Municipalities --- 101 101 flag poles
removed.
TOTAL --- 827 All flag poles were
removed.
Yours faithfully,
District Election Officer,
and District Collector,
Ramanathapuram.
Erode District:
From To
Thiru C.Kathiravan, I.A.S., The Chief Electoral Officer and
District Election Officer / Secretary to Government,
District Collector & Returning Officer, Public (Elections-VIII) Department, 17, Erode Parliamentary Constituency, Secretariat, Chennai- 600 009. Erode.
-----------------------------------------------------------------------------------------------
Ref.No.555/2019/K1, Dated: 24.03.2019 http://www.judis.nic.in 35 Sir, Sub: Elections - General Elections to Lok Sabha, 2019 - Erode District - M.C.C. - W.P.No.17768/2016 filed before the High Court of Madras at Chennai regarding removal of flag poles in public places - Filing of Action taken report - Report called for - Submitted.
Ref: The Chief Electoral Officer and Secretary to Government, Chennai Letter No.e.mail/5261/Elec.VIII/2019-1 Dated:
23.03.2019.
((((())))) I invite kind attention to the reference cited and I enclose herewith the report on the removal of flag poles in public places such as National High Way Roads, State High Way Roads and in Local bodies in the prescribed format as follows:
S.No Name of the Department / Number of Flag Poles Steps taken for Local Body removal With Without Permission Permission
1. Erode Corporation 0 347 All the 347 Flag Poles were removed
2. 4 - Municipalities 0 331 All the 331 Flag Poles were removed
3. 42 - Town Panchayats 0 675 All the 675 Flag Poles were removed
4. 225 - Village Panchayats 0 1601 All the 1601 Flag Poles were removed
5. State Highway Roads 0 181 All the 181 Flag Poles were removed
6. National Highway Roads 0 50 All the 50 Flag Poles were removed TOTAL 0 3185 Yours faithfully District Election Officer / District Collector & Returning Officer http://www.judis.nic.in 36
17. Erode Parliamentary Constituency, Erode Virudhunagar District:
From To
District Election Officer / The Chief Electoral Officer/
District Collector, Secretary to Government,
Virudhudnagar District Public (Elections.VIII)
Virudhunagar Secretariat, Chennai-9.
Roc.No.E1/35570/2018 Dated:- 23.03.2019 Sir, Sub: Elections - General Elections to Lok Sabha 2019 -
Virudhunagar District - Model Code of Conduct - W.P.No.17768/2016 - Submitting action taken report - Regarding Ref: Letter received from the Chief Electoral Officer/Secretary to Government, Public (Elections.VIII) Department in Roc.No.email.Letter No.5261/Elec.VIII/2019-1 Dated:-
23.03.2019.
**** In compliance to the letter cited in the reference, I herewith send my report in the prescribed format in respect of Virudhunagar District as per below.
Number of Flag Poles Steps taken for Removal
With Permission Without Permission
All the 2566 flag Poles
0 2566
were removed
For District Election Officer /
District Collector
Virudhunagar
Salem District:
"No Voter to be Left Behind"
From To
Tmt.Rohini R.Bhajibhakare, I.A.S., The Chief Electoral Officer and
District Election Officer and Secretary to Government, Public
District Collector, (Elections-VIII), Department,
Salem. Secretariat, Chennai.
RoC. No.A1/31/2019 Date: 23.03.2019.
Sir,
Sub: Elections - Salem District - General Elections to Loksabha
2019 - Model Code of Conduct - Directions of the http://www.judis.nic.in 37 Honourable High Court, Chennai in W.P.No.17768 of 2016 - Action taken report called for - Sending of - Regarding.
Ref: email/Letter No.5261/Elc.VIII/2019-1, dated 23.03.2019 of the Chief Electoral Officer & Secretary to Government, Public (Elections.VII) Dept., Chennai-9.
I invite kind attention to the reference cited.
With reference to the orders of the Honourable Madras High Court in W.P.No.17768 of 2016 dated 08.03.2019 and the instructions of the Chief Electoral Officer, Chennai to furnish the status report on flag poles in State Highways, National Highways (including NHAI), Local Bodies, I am herewith furnishing the status of flag poles in respect of Salem District in the prescribed format for kind perusal.
Number of Flag Poles Steps taken for
Removal
With Permission Without Permission
Salem District
0 3949 All the 3949 Poles
have been Removed.
District Election Officer and
District Collector, Salem.
Tirunelveli District
From To
Tmt.Shipa Prabhakar Satish, IAS The Chief Electoral Officer &
District Election Officer / Secretary to Government,
District Collector, Public (Elections VIII) Department,
Tirunelveli. Secretariat, Chennai - 9.
R.o.c.No.L3/9668/2019 dated: 24.03.2019 Sir, Sub: Tirunelveli District - Elections - General Elections to Lok Sabha 2019 - MCC - W.P.No.17768 of 2016 - Flag Poles - Action taken report - Sent - Regarding.
Ref: CEO & Secretary to Govt., Public (Elections) Department letter No.5261/Elec.VII/2019-1 dated 23.03.2019.
*****
Sl.No Local Bodies Number of Flag Poles Steps taken for
Removal
With Without
Permission Permission
1. Corporation - 158 Removed
2. Municipalities - 105 Removed
http://www.judis.nic.in
38
Sl.No Local Bodies Number of Flag Poles Steps taken for
Removal
With Without
Permission Permission
3. Town Panchayats - 682 Removed
4. Village Panchayats - 1678 Removed
TOTAL - 2673
District Election Officer/
District Collector,
Tirunelveli
Thoothukudi District:
From To
Thiru Sandeep Nanduri, I.A.S., Chief Electoral Officer
District Election Officer and and Secretary to Government
District Collector, Public (Elections-VIII) Department
Thoothukudi District, Secretariat, Chennai-600 009
Thoothukudi
Roc.No.E4/31/2019 dated 24.03.2019
Sir,
Sub: Elections – Thoothukudi District – General Elections to Lok Sabha – 2019 – MCC – W.P.No.17768 of 2016 – Action taken report sent- Regarding Ref: 1) Chief Electoral Officer and Secretary to Government letter No.5261.2019-1, Public (Elections-VIII) department,dated 23.03.2019
2) Superintendent of Police, Thoothukudi district letter C.No.97/Ls/ELE/TUT/2019, dated 24.03.2019. Kind attention is solicited to the references cited.
I have furnished the status report on flag poles in State Highways, National Highways (including NHAI) local bodies regarding General elections to Lok Sabha – 2019 in the following format in respect of Thoothukudi district.
Number of flag poles
Steps taken for Removal
with without
permission permission
3 81 34 flag poles were removed by Police
(High Court personnel and Local Government
Order) authorities after registration of cases
http://www.judis.nic.in
39
Number of flag poles
Steps taken for Removal
with without
permission permission
under Tamil Nadu Open places (Prevention of Disfigurement) Act and remaining 47 poles were removed by the concerned individuals on the instruction of local bodies Yours faithfully, Sd/- Sandeep Nanduri, District Election Officer and District Collector, Thoothukudi Tiruppur District From To Dr.K.S.Palanisamy, I.A.S., The Chief Electoral Officer District Election Officer/ and Secretary to Government District Collector, Chennai-600 009 Tiruppur.
Rc.No.14270/2018/K, dated 24.03.2019 Sir, Sub: Elections-General Elections to Lok Sabha, 2019 Tiruppur District-Model code of conduct-case filed in the Hon'ble High Court of Madras in W.P.No.17768 of 2016- Status Report on removal of flag poles in State and National Highways and Local Bodies – Action taken report submitted- Regarding Ref: The Chief Electoral Officer and Secretary to Government Public (Elections – VIII) Department, Secretariat, Chennai-9 email/Letter No.5261/Elec.VIII/2019-1, dated 23.03.2019 I invite kind attention to the reference cited above As called for in the reference cited I hereby furnish the status report on flag poles in State Highways, National Highways and Local Bodies, in the format given below:
http://www.judis.nic.in 40 Number of flag poles Steps taken for removal With permission Without permission Nil 3130 In Tiruppur district 3130 flag poles in State Highways, National Highways and Local Bodies, were removed sd/- K.S.Palanisamy, District Election Officer/ District Collector Tiruppur Theni District:
From To
Smt.M.Pallavi Baidev, I.A .S., Chief Electoral Officer/
District Election Officer/ Secretary to Government
District Collector, Public (Elections) Department
Theni District Secretariat, Fort St.George
Theni-625 531 Chennai-600 009
Roc.No.34086/2018/G.1 Date.23.03.2019
Sir,
Sub: Elections-General Elections to Lok Sabha and Bye-
Elections to Tamil Nadu Legislative Assembly-2019 Theni District – Action taken report submit -reg Ref 1. The Chief Electoral Officer and Secretary to Government Public (Elections – VIII) Department, Secretariat, Chennai-9 email/Letter No.5261/Elec.VIII/2019-1, dated 23.03.2019
2. Reports received from concerned officials dated:
23.03.2019 In the reference 1st cited, I hereby furnished the status report on flag poles in State Highways, National Highways (including NHAI) and the local bodies.
Number of flag poles Steps taken for removal With permission Without permission 0 1949 All flag poles are already removed http://www.judis.nic.in 41 for District Election Officer/ District Collector, Theni District Udhagamandalam District:
From To
District Election Officer & The Chief Electoral Officer &
District Collector of Nilgiris Secretary to Government
Udhagamandalam Public (Elections) Department
Secretariat, Fort St.George
Chennai-600 009
Rc.No.L1/11894/2018, dated 24.03.2019 Sir, Sub: Election – General elections to Lok Sabha 2019-MCC-
W.P.No,17768 of 2016- Action taken report – sent Ref: Govt. E-mail/Letter No.5261/Elec.VIII/2019-1 Dated 23.03.2019 I invite kind attention to the Government letter cited, in which it has been stated that the Hon'ble High Court of Madras in its order dated: 08.03.2019 in W.P.No.17768 of 2016, has directed to furnish the status report on flag pose in State Highways, National Highways (including NHAI) local bodies.
In this connection, I furnish below the above details in respect of the Nilgiris District in the prescribed format.
No and name of the Assembly Number of flag poles Steps taken for removal
segment
With Without
permission permission
108 - Udhagamandalam All the 8 flag posts have
been removed
109 - Gudalur (SC) 0 0
110 - Coonoor 0 8
Sd/- J.Innocent Divya
District Election officer &
District Collector
The Nilgiris
For District Election Officer
The Nilgiris
Thiruvallur District:
http://www.judis.nic.in
42
From To
Tmt.Mageshwari Ravikumar The Chief Electoral Officer &
District Collector Secretary to Government
Thiruvallur Chennai
Rc.No.400/2018/A3, dated: .03.2019
Sir,
Sub: Election – General Elections to Lok sabha 2019- MCC – W.P.No.17768 of 2016 – Action Taken Report called for sent regarding Ref: Chief Electoral Officer & Secretary to Government E-mail/Letter No.5261/Elec.VIII/2019-1 Dated 23.03.2019 In the reference cited above asked the action taken report on removing of flag poles erected in public places. Consequently, in Thiruvallur District Local Body. Hence, as per prescribed format in respect of Thiruvallur District on the above subject is enclosed.
Details of removal of flag poles in public places LOK SABHA ELECTION 2019 Sl.No Name of the local Number of flag poles Steps taken for removal body With Without Permission permission 1 Municipality 0 494 494 flag poles removed 2 Town Panchayat 0 225 225 flag poles removed 3 Panchyat Union 0 1964 1964 flag poles removed 4 DEE Highways 0 142 142 flag poles removed Total 0 2825 District Collector Thiruvallur Karur District:
From To
Thiru.T.Anbalagan I.A.S. The Chief Electoral Officer &
District Election Officer and Secretary to Government
District Collector Secretariat
Karur District Chennai-600 009
Karur-639 007
http://www.judis.nic.in
43
R.C.D2/5241/2019, dated 24.03.2019
Sir,
Sub: ELECTIONS-Karur District – General elections to
Loksabha, 2019-MCC- W.P.No.17768 of 2016 – Removal of flag poles -report sent - reg Ref: The Chief Electoral Officer, Secretary Chennai Letter No.5261/Elec.VIII/2019-1 Public (Elections-VIII) Dept Dated 23.03.2019 In the reference cited, the Chief Electoral Officer has instructed to send the status report on Flag poles in State Highways, National Highways (including NHAI) and local bodies to be filed in connection with the order of the Hon'ble Madras High Court in W.P.No.17768 of 2016, dated 08.03.2019.
In this regard, I submit herewith the status report on removal of flag poles in State highways, National Highways (including NHAI) and local bodies in the prescribed format in respect of Karur District.
Encl: As above Karur District – Removal of flag poles – format Sl.No Name of the department Number of flag poles Number Steps taken for removal of flag poles removed with without In compliance of ECI permission permission instructions on MCC for the General Elections to 1 AD panchayat karur 0 849 849 Loksabha 2019 all the flag 2 Karur Municipality 0 109 109 poles have been removed 3 Kulithalai Municipality 0 15 15 4 Ad Town Panchayat Dindigul 0 190 190 5 DE Highways Karur 0 0 0 6 NHAI Karur 0 47 47 Total 0 1210 1210 Kanyakumari District:
From To
Thiru.Prashant M.Wadnere I.A.S. The Chief Electoral Officer &
District Election Officer and Secretary to Government
District Collector Public (Elections VIII) Department,
Kanyakumari District Secretariat
Chennai-600 009
Lr.No.Z1/54/2019, dated 24.03.2019
http://www.judis.nic.in
44
Sir,
Sub: ELECTIONS- General elections to Lok Sabha, 2019-
MCC- W.P.No.17768 of 2016 – Action taken report called for – sending report – regarding Ref: Government letter No.5261/Elec.VIII/2019-1 Public (Elections-VIII) Dept, Dated 23.03.2019 I invite kind attention to the reference cited and furnish the status report on the removal of flag poles in respect of Kanniyakumari District in the prescribed format hereinafter.
Number of flag poles Steps taken for removal
With permission without
permission
0 3708 1. Orders were issued to all the Municipal Commissioner, Executive officers and block development officers (Block Panchayat and Village Panchayat) to remove all flag poles erected on the road margin, especially on the platform and arches put across the roads without prior permission/license as contemplated under the provisions in coordination with the respective Police Authorities.
2. For the general awareness of the public and all political parties/representatives, a detailed press release was issued and circulated in all the major vernacular dailies on 21.03.2019
3. The entire process of removal of flag poles was actively monitored by the District Administration to avoid fresh installation of flag poles in future.
Further it is submitted that out of the 3708 flag poles identified a number of 3708 were removed. The details are as follows:
Sl.No Name of local bodies No of flag poles identified No of flag Balance to with without poles be permission permission removed removed 1 Rural local bodies 0 1134 1134 0 2 Town Panchayats 0 1840 1838 2 3 Municipalities 0 734 734 0 Total 0 3708 3706 2 Two flag poles are left over in suchindram town panchayat due to passage of EB HT line very near to the flag poles. It will be removed on 25.03.2019 positively.
http://www.judis.nic.in 45 District Election Officer and District Collector Kanniyakumari District Ariyalur District:
From To
Tmt.M.Vijayalakshmi, I.A.S. The Chief Electoral Officer &
District Election Officer and Secretary to Government
District Collector Public (Elections VIII) Department,
Ariyalur Secretariat
Chennai-600 009
Rc.No.D3/1260/2019 Dated:24.03.2019
Sir,
Sub: ELECTIONS- General elections to Lok Sabha, 2019-
MCC- Action taken report on W.P.No.17768/2016- submitted - Reg Ref: Letter No.5261/2019-1, dated:23.03.2019 from the Chief Electoral Officer and Secretary to Government, Public (Elections-VIII) Dept, Chennai I invite kind attention to the reference cited and submit below the status report on flagpoles in connection with the order of Hon'ble High Court of Madras in W.P.No.17768 of 2016, dated 08.03.2019 in the prescribed format in respect of Ariyalur District.
Number of Flag Poles Steps taken for removal
With permission Without permission
0 1417 Out of 1417 flagpoles identified, 1308
were removed and the concessionaire has
been instructed to remove remaining 109
flagpoles immediately
Yours faithfully,
(sd)/- M.Vijayalakshmi
District Election Officer and
District Collector, Ariyalur
http://www.judis.nic.in
46
To
From
The Chief Electoral Officer &
Thiru S.Sivarasu., I.A.S Secretary to Government
District Election Officer and Public (Elections VIII) Department,
District Collector Secretariat
Ariyalur Chennai-600 009
Rc.G2/14985/2018 Dated 24.03.2019
Sir,
Sub: ELECTIONS- General elections to Lok Sabha, 2019-MCC-
Action – W.P.No.17768/2016- Action taken report called for – Report sent – Regarding Ref: 1.Copy of the order of Hon'ble Madras High Court in W.P.No.17768 of 2016, Dated 08.03.2019
2. Government Letter No.5261/Elec.VIII/2019-1, Public (Elections-VIII) Dept, Dated 23.03.2019 I invite kind attention to the references cited.
As per the instructions of the Government, the status report on flag poles in state Highways, National Highways (including NHAI),local bodies is enclosed herewith in the prescribed format in respect of Tiruchirappalli District.
Yours faithfully, District Election Officer & District Collector Tiruchirappalli R.C.No.G2/1498/2018 O/o District Election Officer Date:24.03.2019 and District Collector Tiruchirappalli Format Number of flag poles Steps taken for removal With permission without permission 0 2564 All the 2564 flag poles have been removed.
Sivagangai District:
http://www.judis.nic.in 47 To From The Chief Electoral Officer & The District Collector Secretary to Government Sivaganga District Public (Elections V) Department, Sivaganga Secretariat Chennai-600 009 Roc.E1/4295/2019 dated 24.03.2019 Sir, Sub: Elections Law and Order – Sivanganga District- General Elections to lok sabha -2019 – W.P.No.17768 of 2016- Action taken report regarding. Daily report on law and order – Regarding Ref: The Chief Electoral Officer & Secretary to Government, Public (Elections.VIII) Department, Secretariat, Chennai-600009 letter email No.5261/Ele-VIII/2019-1, Dated 23.03.2019 I invite kind attention to the reference cited. I send here with details called for in the reference cited in respect Sivaganga District as detailed below.
Department Number of flag poles Steps taken for
With without removal
permission permission
Town Panchayat - 217 All flags removed
Village Panchayat - 1397 All flags removed
Municipality - 107 All flags removed
Total - 1721*
* including poles/flags located in State/National Highways yours faithfully, District Collector,Sivaganga Perambalur District:
From To
Tmt.V.Santha, I.A.S The Chief Electoral Officer &
District Collector Secretary to Government
Perambalur District Public (Elections VIII) Department,
Perambalur-621212 Secretariat
Chennai-600 009
http://www.judis.nic.in
48
Lr.No.RC.D2/2050/2019 Dated 03.2019
Sir,
Sub: Elections-General Elections to Lok Sabha, 2019 – MCC – Order
of the Hon'ble Madras High Court in W.P.No.17768 of 2016- Action taken report- called for-sent-regarding.
Ref: The Chief Electoral Officer & Secretary to Government, Public (Elections VIII) Department, Secretariat, Chennai-9, email/letter No.5261/Elec.VIII/2019-1, Dated 23.03.2019 I invite kind attention to the reference cited. I am enclosing herewith the status report on flag poles in State Highways, National Highways (inclduing NHAI) and local bodies in the prescribed format in respect of Perambalur district as requested in the reference cited.
Encl: Format Yours faithfully, for District Collector, Perambalur Rc.No.J1/2050/2019 District Collectorate, Dated: 03.2019 Perambalur Sl.No Name of the Number of flag poles Steps taken for Department With without removal permission permission 1 National Highways - 42 Removed (including NHAI) 2 Highways department - 14 Removed 3 Rural Bodies - 1080 Removed Total - 1136 For District Collector Perambalur Dharmapuri District:
http://www.judis.nic.in 49 From To Tmt.S.Malarvizhi, I.A.S The Chief Electoral Officer & District Collector Secretary to Government Dharmapuri Public (Election VIII) Department Chennai-9 Roc.No.668/2018/A2, Dt 23.03.2019 Sir, Sub: Election-General Election to Lok Sabha 2019- MCC – W.P.No.17768 of 2016- Action taken report regarding.
Ref: Public (Elections VIII) Department, Lr.No.5261/ElecVIII/ 2019-1, dated 23.03.2019 In response to the letter read in the reference, I wish to inform that action has been taken to remove the flag poles in State Highways, National Highways and local bodies.
I am enclosing here with the details on the subject.
District Collector Dharmapuri Details of removal of flag poles in public places in rural areas Number of flag poles Steps taken for removal With permission without permission 0 1745 Already removed District Collector, Dharmapuri
6. He further added that in Kanyakumari District, out of 3708 poles erected without permission, 3706 poles have been removed and two poles are yet to be removed. In Tuticorin District, inasmuch there is a court order, three poles are not removed. The above reports have been submitted by the respective District Collectors, to the Chief Electoral Officer and Secretary to the Government, Public (Elections) Department, Secretariat, Chennai.
http://www.judis.nic.in 50
7. By inviting the attention of this court to the compilation of the Collectors' Report submitted by Mr.Niranjan Rajagopalan, learned counsel for the Election Commission of India, Mr.E.Manoharan, learned Additional Government Pleader submitted that though the tabular heading of the tabular column indicates the details of removal of flag poles only in public places in Rural areas, in reality, flag poles without permission erected on urban/town/rural/municipalities/ panchayats/villages have also been removed. To illustrate, he drew the attention of this Court to a report submitted by the District Election Officer and District Collector, Ramanathapuram in Roc.D2/49450/2018 dated 24.3.2019 addressed to the Chief Electoral Officer and Secretary to the Government, Public (Elections VIII) Department, Secretariat, Chennai - 600 009. Proforma dated 24.3.2019 of District Election Officer and District Collector, Ramanathapuram, at page 6, is reproduced hereunder:
Ramanathapuram District :
From To
Thiru K.Veera Raghava Rao, I.A.S., The Chief Electoral Officer and
District Election Officer Secretary to Government,
and District Collector, Public (Elections.VIII) Department,
Ramanathapuram. Secretariat, Chennai - 600 009.
Roc.D2/49450/2018 Dated: 24-03-2019
Respected Sir,
Sub: ELECTIONS - General Elections to Lok Sabha 2019 - Model Code
of Conduct - W.P.No.17768 of 2016 - Removal of flag poles - Action taken report - sent - regarding.
Ref: Govt. email/Letter No.5261/Elec.VIII/2019-1 dated 23-03-2019.
I invite kind attention to the reference cited and would like to state that the particulars in connection with the status report on flag poles in State Highways, National Highways (including NHAI), local bodies are furnished in the prescribed format as detailed below:-
http://www.judis.nic.in 51 Sl.No Name of the Department Number of Flag Poles Steps taken for Removal With Without Permission Permission
1. State Highways - - -
2. National Highways - - -
3. Local Bodies --- --- ---
Village Panchayats --- 685 685 flag poles removed.
Town Panchayats --- 41 41 flag poles
removed.
Municipalities --- 101 101 flag poles
removed.
TOTAL --- 827 All flag poles were
removed.
Yours faithfully,
District Election Officer,
and District Collector,
Ramanathapuram.
8. Similarly, the report submitted by the District Election Officer and District Collector, Erode dated 24.3.2019 addressed to the Chief Electoral Officer and Secretary to the Government, Public (Elections VIII) Department, Secretariat, Chennai - 600 009, is reproduced hereunder:
Erode District:
From To
Thiru C.Kathiravan, I.A.S., The Chief Electoral Officer and
District Election Officer / Secretary to Government,
District Collector & Returning Officer, Public (Elections-VIII) Department, 17, Erode Parliamentary Constituency, Secretariat, Chennai- 600 009. Erode.
----------------------------------------------------------------------------------------------
Ref.No.555/2019/K1, Dated: 24.03.2019 Sir, Sub: Elections - General Elections to Lok Sabha, 2019 - Erode District - M.C.C. - W.P.No.17768/2016 filed before the High Court of Madras at Chennai regarding removal of flag poles in public places - Filing of Action taken report - Report called for - Submitted.
http://www.judis.nic.in 52 Ref: The Chief Electoral Officer and Secretary to Government, Chennai Letter No.e.mail/5261/Elec.VIII/2019-1 Dated: 23.03.2019.
((((())))) I invite kind attention to the reference cited and I enclose herewith the report on the removal of flag poles in public places such as National High Way Roads, State High Way Roads and in Local bodies in the prescribed format as follows:
S.No Name of the Department / Number of Flag Poles Steps taken for Local Body removal With Without Permission Permission
1. Erode Corporation 0 347 All the 347 Flag Poles were removed
2. 4 - Municipalities 0 331 All the 331 Flag Poles were removed
3. 42 - Town Panchayats 0 675 All the 675 Flag Poles were removed
4. 225 - Village Panchayats 0 1601 All the 1601 Flag Poles were removed
5. State Highway Roads 0 181 All the 181 Flag Poles were removed
6. National Highway Roads 0 50 All the 50 Flag Poles were removed TOTAL 0 3185 Yours faithfully District Election Officer / District Collector & Returning Officer
17. Erode Parliamentary Constituency, Erode
9. Nevertheless, we reiterate that our previous orders would apply to both rural/urban areas and all unauthorised flag poles erected without permission have to be removed. Violation of which may invite the provisions Contempt of Courts Act, 1971 and Model Code of Conduct.
10. Insofar as National Highways Authority of India, Chennai http://www.judis.nic.in 53 Project Implementation Unit is concerned, on the basis of a status report, Mr.Richardson Wilson, learned counsel for the National Highways Authority of India, submitted that, out of 1665 flag poles erected by various persons/parties on National Highways, under the control of the National Highways Authority of India, Chennai Region, 1468 flag poles have been removed by the Project Directors and action is being taken to remove the remaining 197 flag poles. Wherever there is resistance from the political parties/organizations, Project Directors have been instructed to request the concerned police to grant protection for removal of flag poles.
11. Regional Officer, National Highways Authority of India, Madurai, in his report dated 19.3.2019, has stated that out of 719 flag poles, 381 flag poles have been removed and the Project Directors are taking action to remove the remaining 338 flag poles.
12. Inviting the attention of this court to Section 24 of the Control of National Highways (Land and Traffic) Act, 2002, Mr.Richardson Wilson, learned counsel for National Highways Authority of India, submitted that Section 24 of the said Act deals with prevention of occupation of highway land and in particular sub section (2)(i) of the said section deals with permission to be granted to place a movable structure on the Highway in front of any building owned by him or to make a movable structure on support of such building and over the Highway.
13. Learned counsel for the National Highways Authority of India submitted that Section 26 of the said Act, deals with removal of unauthorised occupation and while removing if there is any obstruction, sub section (7) provides for assistance of the police if necessary to remove such occupation by use of reasonable force necessary for such removal.
14. He also submitted that Section 27 of the said Act provides for recovery of the cost of removal of unauthorised occupation and fine imposed.
15. Provisions referred are extracted hereunder:
24. Prevention of occupation of highway land.—(1) No person shall occupy any highway land or discharge any material through drain on such land without obtaining prior permission, for such purpose in writing, of the Highway Administration or any http://www.judis.nic.in 54 officer authorised by such Administration in this behalf.
(2) The Highway Administration or the officer authorised under sub-section (1) may, on an application made by a person in this behalf and having regard to the safety and convenience of traffic, grant permission to such person—
(i) to place a movable structure on the Highway in front of any building owned by him or to make a movable structure on support of such building and over the Highway, or
(ii) to put up a temporary lawning or tent or other similar construction or a temporary stall or scaffolding on the Highway, or
(iii) to deposit or cause to be deposited, building materials, goods, for sale or other articles on any Highway, or
(iv) to make a temporary excavation for carrying out any repairs or improvements to adjoining buildings, and such permission shall be granted subject to the conditions and on payment of the rent and other charges by issuing permit in the form as may be prescribed:
Provided that no such permission shall be valid beyond a period of one month at a time from the date on which the permission has been granted unless it is renewed by the Highway Administration or such officer on an application made by such person for the renewal of the permission.
(3) The permission granted under sub-section (2) shall specify therein—
(i) the time up to which the permission is granted;
(ii) the purpose of such permission;
(iii) the portion of the Highway in respect of which the permission has been granted, and shall be accompanied with a plan or sketch of such portion of Highway.
(4) The person, to whom the permit has been issued under sub-section (2), shall produce the permit for inspection whenever called upon to do so by any officer of the Highway Administration and shall, on the expiry of the permission granted under such http://www.judis.nic.in 55 permit, restore the portion of the Highway specified in the permit in such condition as it was immediately before the issuing of such permit and deliver the possession of such portion to the Highway Administration.
(5) The Highway Administration or the officer issuing the permit under sub-section (2) shall maintain a complete record of all such permits issued, and shall also ensure in every case at the expiration of the period up to which the permission under a permit is granted under that sub-section that the possession of the portion of the Highway in respect of which such permission was granted has been delivered to the Highway Administration.
26. Removal of unauthorised occupation.—(1) Where the Highway Administration or the officer authorised by such Administration in this behalf is of the opinion that it is necessary in the interest of traffic safety or convenience to cancel any permit issued under sub-section (2) of section 24, it may, after recording the reasons in writing for doing so, cancel such permit and, thereupon, the person to whom the permission was granted shall, within the period specified by an order made by the Highway Administration or such officer restore the portion of the Highway specified in the permit in such condition as it was immediately before the issuing of such permit and deliver the possession of such portion to the Highway Administration and in case such person fails to deliver such possession within such period, he shall be deemed to be in unauthorised occupation of highway land for the purposes of this section and section 27.
(2) When, as a result of the periodical inspection of highway land or otherwise, the Highway Administration or the officer authorised by such Administration in this behalf is satisfied that any unauthorised occupation has taken place on highway land, the Highway Administration or the officer so authorised shall serve a notice in a prescribed form on the person causing or responsible for such unauthorised occupation requiring him to remove such unauthorised occupation and to restore such highway land in its http://www.judis.nic.in 56 original condition as before the unauthorised occupation within the period specified in the notice.
(3) The notice under sub-section (2) shall specify therein the highway land in respect of which such notice is issued, the period within which the unauthorised occupation on such land is required to be removed, the place and time of hearing any representation, if any, which the person to whom the notice is addressed may make within the time specified in the notice and that failure to comply with such notice shall render the person specified in the notice liable to penalty, and summary eviction from the highway land in respect of which such notice is issued, under sub-section (6).
(4) The service of the notice under sub-section (2) shall be made by delivering a copy thereof to the person to whom such notice is addressed or to his agent or other person on his behalf or by registered post addressed to the person to whom such notice is addressed and an acknowledgment purporting to be signed by such person or his agent or other person on his behalf or an endorsement by a postal employee that such person or his agent or such other person on his behalf has refused to take delivery may be deemed to be prima facie proof of service.
(5) Where the service of the notice is not made in the manner provided under sub-section (4), the contents of the notice shall be advertised in a local newspaper for the knowledge of the person to whom the notice is addressed and such advertisement shall be deemed to be the service of such notice on such person.
(6) Where the service of notice under sub-section (2) has been made under sub-section (4) or sub-section (5) and the unauthorised occupation on the highway land in respect of which such notice is served has not been removed within the time specified in the notice for such purpose and no reasonable cause has been shown before the Highway Administration or the officer authorised by such Administration in this behalf for not so removing unauthorised occupation, the Highway Administration or http://www.judis.nic.in 57 such officer as the case may be, shall cause such unauthorised occupation to be removed at the expenses of the Central Government or the State Government, as the case may be, and impose penalty on the person to whom the notice is addressed which shall be five hundred rupees per square metre of the land so unauthorisedly occupied and where the penalty so imposed is less than the cost of such land, the penalty may be extended equal to such cost.
(7) Notwithstanding anything contained in this section, the Highway Administration or the officer authorised by such Administration in this behalf shall have power without issuing any notice under this section to remove the unauthorised occupation on the highway land, if such unauthorised occupation is in the nature of—
(a) exposing any goods or article—
(i) in open air; or
(ii) through temporary stall, kiosk, booth or any other shop of temporary nature,
(b) construction or erection, whether temporary or permanent, or
(c) trespass or other unauthorised occupation which can be removed easily without use of any machine or other device, and in removing such occupation, the Highway Administration or such officer may take assistance of the police, if necessary, to remove such occupation by use of the reasonable force necessary for such removal.
(8) Notwithstanding anything contained in this section, if the Highway Administration or the officer authorised by such Administration in this behalf is of the opinion that any unauthorised occupation on the highway land is of such a nature that the immediate removal of which is necessary in the interest of—
(a) the safety of traffic on the Highway; or http://www.judis.nic.in 58
(b) the safety of any structure forming part of the Highway, and no notice can be served on the person responsible for such unauthorised occupation under this section without undue delay owing to his absence or for any other reason, the Highway Administration or the officer authorised by such Administration may make such construction including alteration of any construction as may be feasible at the prescribed cost necessary for the safety referred to in clause (a) or clause (b) or have such unauthorised occupation removed in the manner specified in sub- section (7).
(9) The Highway Administration or an officer authorised by such Administration in this behalf shall, for the purposes of this section or section 27, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) issuing commissions for the examination of witnesses; and
(d) any other matter which may be prescribed, and any proceeding before such Administration or officer shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code (45 of 1860) and the Administration or the officer shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
27. Recovery of cost of removal of unauthorised occupation and fine imposed.—(1) Where a Highway Administration or the officer authorised by such Administration in this behalf has removed any unauthorised occupation or made any construction including alteration of construction in respect of any unauthorised occupation or repaired any damage under sub-section http://www.judis.nic.in 59 (2) of section 36, the expenditure incurred in such removal or repair together with fifteen per cent. of additional charges or any fine imposed under this Act shall be recoverable in the manner hereinafter provided in this section.
(2) The Highway Administration or the officer authorised in this behalf by such Administration shall serve a copy of the bill in the prescribed form indicating therein the expenditure, additional charges or fine recoverable under sub-section (1) on the person from whom such expenditure, additional charges or fine is recoverable and the provisions of section 26 relating to the service of notice shall apply for the service of copy of the bill under this sub-section as if for the word “notice” the word “bill” has been substituted in that section.
(3) A copy of the bill referred to in sub-section (2) shall be accompanied with a certificate issued by the Highway Administration or the officer authorised by such Administration in this behalf and the amount indicated in the bill shall be the conclusive proof that such amount is the expenditure actually incurred for all or any of the purposes referred to in sub-section (1) as indicated in the bill.
(4) Where a Highway Administration or the officer authorised in this behalf by such Administration has removed any unauthorised occupation or made any construction including alteration of construction in respect of any unauthorised occupation or repaired any damage under sub-section (2) of section 36, the material, if any, recovered as a result of such removal, construction, alteration or repair shall be retained in possession of the Highway Administration or such officer till the payment of the bill in respect thereof served under sub-section (2) and on payment of such bill such material shall be returned to the person entitled for the material, but in case of the failure of such payment within the time specified for the payment in the bill, the material may be sold by auction by the Highway Administration or such officer and after deduction of the amount payable under the bill from the http://www.judis.nic.in 60 proceeds of the auction, the balance, if any, shall be returned to the person entitled therefor.
(5) In case where the proceeds of the auction under sub- section (4) is less than the amount recoverable under the bill referred to in that sub-section, the difference between such proceeds and the amount so recoverable or where no such auction has been made, the amount recoverable under the bill shall, in case of failure of the payment within the time specified in the bill, be recoverable as the arrears of land revenue.
16. Learned counsel for National Highways, also brought to the notice of this court that Section 39 of the said Act, deals with for penalty for the unauthorised occupation of Highway land. The said section reads thus:
39. Offence and penalty.—(1) If any person, who has been evicted from any unauthorised occupation on a highway land under this Act, again occupies any highway land without permission for such occupation under this Act, he shall be punishable with imprisonment for a term which may extend to one year, or with fine which shall not be less than one thousand rupees per square metre of so occupied highway land but which shall not exceed two times the cost of such highway land, or with both. (2) Any court, convicting a person under sub-section (1), may make an order for evicting that person from such occupied highway land summarily and he shall be liable to such eviction without prejudice to any other action that may be taken against him. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence punishable under sub-section (1) shall be cognizable.
17. In addition to the above, Mr.Richardson Wilson, learned counsel for National Highways Authority of India also brought to the notice of this court a decision of Hon'ble First Bench of this court in W.P. No.31084 of 2017 dated 30.11.2017, wherein the Hon'ble First Bench at paragraph Nos.14 and 17 observed as under:
http://www.judis.nic.in 61 "14. The erection of arches, placards and display boards, banners with poles, etc., abutting into public streets and pavements, which obstruct free and safe movement of traffic or free and safe movement of pedestrians or obstructs visibility of drivers is patently illegal.
17. All arches, display boards, hoardings, placards and banners with poles or frames, etc., fixed to and/or dug into the ground, which abut into highways, public streets and pedestrian pavements shall forthwith be removed. No poles or frames or structures for arches, boards, placards, hoardings, display boards or banners shall be erected on any highway, public road, public passage or pedestrian pathway or pavement. Holes caused on pavements and roads by reason of erection of frames, poles, structures, placards, hoardings, displaying boards, banners, etc., shall forthwith be repaired. This order will not, however, prevent the respondents from erecting and/or permitting the erection/setting up of display boards, hoardings, placards and banners, which do not abut into or obstruct pavements, pedestrian pathways, public streets and highways, strictly in accordance with law. For example, display boards, placards, etc., may be installed on vacant land, buildings and/or beyond the edge of the pavement/pedestrian pathway running parallel to the pavement and/or road with the requisite approvals."
18. Learned counsel for the National Highways Authority of India, further submitted that no permission has been granted by the National Highways Authority of India to any person or authority under Section 24(2) of the Control of National Highways (Land and Traffic) Act, 2002.
Submission is placed on record.
19. From the submission of the learned counsel for the National Highways Authority of India, it is abundantly clear that no permission has been granted by the competent authority, to erect a flag pole on National Highway. Provisions make it clear that such erection of poles is unauthorised, and whenever the competent authority seeks for the http://www.judis.nic.in 62 assistance of the police for removal of such unauthorised flag poles on National Highways, police is bound to render assistance and remove the same, even by using reasonable force. Hence, if any request is made by a competent authority from National Highways, the concerned Superintendents of Police, Inspectors of Police, within whose jurisdiction unauthorised flag poles, have been erected, are directed to remove the same and report to the competent authority, so as to facilitate National Highways to submit a report, as directed by this court.
20. Notwithstanding the request if any to be made by the National Highways Authority of India, we reiterate that the District Administration/District Police should remove all unauthorised flag poles. Cross verification of the reports, can be done by State, as well as the Election Commission.
21. Insofar as Chennai District is concerned, no report has been filed as to the number of flag poles erected without permission and removed. However, on oral instructions, learned Additional Government Pleader, submitted that the number of poles would be approximately 5000 and the authorities concerned, have started removing. Commissioner of Greater Chennai Corporation and Commissioner of Police, Greater Chennai, authorities who are bound to act as per the Code of Conduct, are directed to act swiftly and report to the District Election Officer/District Collectors.
22. By 1.4.2019, all the District Election Officers and District Collectors and others are directed to submit reports on the removal of unauthorised flag poles erected. Secretary to the Government, Department of Rural Development and Panchayat Raj Department, Secretary to Government, Municipal Administration, Regional Managers, Officers of National Highways Authority of India, are directed to submit further reports, on the removal of unauthorised flag poles, with supporting materials.
Post the matter on 1.4.2019.” http://www.judis.nic.in 63
6. On 01.4.2019, when the matter came up for further hearing, Mr.E.Manoharan, learned Additional Government Pleader submitted status report pertaining to Chennai District, in Court and the same has been acknowledged by the Election Commission of India. On the said day, we passed the following order:
"On 25.03.2019, we issued the following directions:-
"21. Insofar as Chennai District is concerned, no report has been filed as to the number of flag poles erected without permission and removed. However, on oral instructions, learned Additional Government Pleader, submitted that the number of poles would be approximately 5000 and the authorities concerned, have started removing. Commissioner of Greater Chennai Corporation and Commissioner of Police, Greater Chennai, authorities who are bound to act as per the Code of Conduct, are directed to act swiftly and report to the District Election Officer/District Collectors.
22. By 1.4.2019, all the District Election Officers and District Collectors and others are directed to submit reports on the removal of unauthorised flag poles erected. Secretary to the Government, Department of Rural Development and Panchayat Raj Department, Secretary to Government, Municipal Administration, Regional Managers, Officers of National Highways Authority of India, are directed to submit further reports, on the removal of unauthorised flag poles, with supporting materials."
2. Pursuant to the same, Joint Commissioner (R & F), Greater Chennai Corporation, Chennai, has filed a report, as hereunder:-
4. I respectfully submit that as per the directions of the Hon'ble High Court the status report of the flag poles are furnished herewith:-
http://www.judis.nic.in 64 SL.NO ZONE NO. OF FLAG POLES (WITHOUT NO. OF FLAG POLES PERMISSION) REMOVED 1 I 380 380 2 II 197 197 3 III 262 262 4 IV 485 485 5 V 609 609 6 VI 913 913 7 VII 336 336 8 VIII 573 573 9 IX 703 703 10 X 534 534 11 XI 200 200 12 XII 151 151 13 XIII 763 763 14 XIV 481 481 15 XV 391 391 TOTAL 6,978 6,978
3. Mr.E.Manoharan, learned Additional Government Pleader, submitted that 6,978 flag poles, have been removed.
4. Project Director, National Highways Authority of India, Chennai (PIU), has filed a further status report, stating that the Regional Officer, National Authority of India, Madurai in his report dated 19.03.2019 has stated that 381 flag poles out of 719 flag poles on National Highways under his control have been removed by the Project Directors and they are taking action to remove the remaining flag poles. For brevity, Paragraph Nos.8 and 9 of the status report of the Project Director, National Highways Authority of India, Chennai (PIU), are reproduced:-
"8. I submit that as per the report received from the Project Direction, there were 1665 numbers of flagpoles erected by various persons/parties on the National Highways under the control of NHAI, Chennai Region. Further, 1468 flagpoles have been removed by the Project Directors and they are taking action to remove the http://www.judis.nic.in 65 remaining flagpoles. It is submitted that wherever there is resistance from the political parties / organizations etc. the Project Directors have been instructed to request the police to grant protection for removal of encroachment.
9. I submit that the Regional Officer, NHAI Madurai in his report dated 19.03.2019 has stated that 381 flag poles out of 719 flag poles in the National Highways under his control have been removed by the Project Directors and they are taking action to remove the remaining flag poles."
5. Affidavit in respect of Chennai District and details furnished in the Court, are also acknowledged.
6. Mr.Niranjan Rajagopalan, learned counsel for Election Commission of India, submitted that reports from 31 Districts, have been received by the Election Commission of India. He further submitted that two flag poles in Thiruvannamalai District, have not been removed, as they were erected with the permission of local body. Submission is placed on record.
7. Post on 02.04.2019, in the motion list.”
7. In addition to the above, learned Additional Government Pleader also submitted Status Reports regarding removal of flag poles, in the balance 10 districts reports have been received. The said reports are extracted as follows:-
Madurai District:-
From To
Dr.S.Natarajan, I.A.S., The Chief Electoral Officer &
District Election Officer & Secretary to Government,
District Collector, Madurai. Public (Elections-VIII)
Department, Secretariat,
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66
Chennai – 600 009.
Roc.D1/11414/2019, Dated 24.03.2019
Sir,
Sub : Elections – General Elections to Lok Sabha – 2019 -
MCC-W.P.No.17768 of 2016 – Action taken Report - Regarding.
Ref : Government Letter No.5261/Elec.VIII/2019-1.
********** I invite kind attention to the reference cited. The particulars called for therein is sent herewith in the prescribed format in respect of Madurai District.
Encl: Format Yours faithfully, District Election Officer & District Collector, Madurai.
MADURAI DISTRICT – ACTION TAKEN REPORT FOR REMOVAL OF FLAG POLE SI. Name of the Number of Flag Poles Steps taken No Office for Removal With Without Permission Permission 1 Highways 0 29 Removed all the Flag Poles 2 National Highways 0 28 Removed all the Flag (including NHAI) Poles 3 Local bodies 0 2702 Removed all the Flag Poles Total 2759 District Election Officer & District Collector, Madurai.
Dindigul District:-
From To
Dr.T.G.Vinay, I.A.S., The Chief Electoral Officer &
District Election Officer & Secretary to Govt.,
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67
District Collector, Public (Elections-VIII) Dept.,
Dindigul District, Secretariat,
Dindigul Chennai – 9.
Roc.No.501/2019-A4, dated 24.03.2019
Sir,
Sub: Elections – General Elections to Lok Sabha, 2019 – MCC –
W.P. No. 17768 of 2016 – action taken report – reg.
Ref: Govt. lr.no.5261/Ele.VIII/2019-1, dated 23.03.2019 ******* I invite kind attention to the letter cited and wish to state that the details are furnished herewith in the prescribed proforma.
Encl:Promorma Yours faithfully,
For Collector,
Personal Assistant (General) to
Collector, Dindigul.
Roc.No.501/2019-A9
Collector's Office,
Dindigul
Dated : 24-03-2019
Proforma
Number of Flag Poles Steps taken for Removal
With Permission Without
Permission All the 2752 poles have been
removed
0 2752
For Collector,
Personal Assistant (General) to
Collector, Dindigul.
Thanjavur District:-
From To
Thiru A.Annadurai, I.A.S. The Chief Electoral Officer and
District Election Officer and Secretary to Government,
District Collector, Public (Elections-VIII) Department,
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68
Thanjavur Secretariat, Chennai – 9.
Rc.No.8160/2019 G1 dated 24.03.2019
Sir,
Sub : Elections – General Elections to Lok Sabha, 2019 and Bye-Election from 174 –
Thanjavur Assembly Constituency – VCC – W.P.No.17768 of 2016 – Action taken Report – called for – sent. Regarding Ref : The Chief Electoral Officer/Secretary to Government, Public(Elections – VIII) Department, Secretariat, Chennai – 9 Letter No.5261/Ele.VIII/2019-1, dated 23.3.2019.
************* In the reference cited the Chief Electoral Officer/Secretary to Government has called for Action taken Report on the removal of Flag Poles in Thanjavur District to be filed in connection with the order of the Hon'ble Madras High Court in W.P.No.17768 of 2016, dated 8.3.2019 in the following format in respect of Thanjavur District.
The above report is furnished as follows, Number of Flag Poles Steps taken for Removal With Permission Without It is informed that all the 2961 Flag Permission poles had been removed in respect of Thanjavur District.
0 2961 Yours faithfully, District Election Officer and District Collector, Thanjavur.
Cuddalore District:-
From To
Thiru.V.Anbuselvan, I.A.S., The Chief Electoral Officer
District Election Officer District Collector, Secretary to Government,
Cuddalore. Secretariat,
Chennai – 600 009.
Rc.No.M1/6495/2019. Dated 25.03.2019
Sir,
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69
Sub: Elections – General Elections to Lok Sabha 2019 -
MCC – W.P.No.17768 of 2016 – Action Taken -
Status Report – Regarding.
Ref: 1. Copy of the order of Hon'ble Madras High Court in W.P.No.17768 of 2016.
Dated: 08.03.2019.
2. Email/Letter No.5261/Elec.VIII/2019-1. Dated: 23.03.2019
3. Rc.No.M1/6495/2019, Dt: 24.03.2019.
******** Kind attention invited to the reference cited above.
The Revised status report on Flag Poles after field verification in respect of Cuddalore District including State Highways and National Highways is submitted as per the prescribed format.
Yours faithfully, District Collector, Cuddalore.
Details of Removal of Flag Poles in Public places District: Cuddalore Number of Flag Poles Steps taken for Removal With Permission Without Permission Already removed 0 4057 District Collector, Cuddalore.
Villupuram District:-
From To
Dr. L.Subramanian, I.A.S., The Chief Electoral Officer &
District Election Officer & Secretary to Government,
District Collector, Public (Elections VIII) Department,
Villupuram District. Secretariat, Chennai – 9.
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70
Roc.No.H1/5385/2019 Dated : 25.03.2019 Sir, Sub: Elections – Villupuram District – General Election to Lok Sabha 2019 – Court case – Hon'ble High Court of Madras - W.P.No.17768 of 2016 – Remove the flag poles erected in public places permanently – put ban on erection of flag poles in public places – Action taken report requested – regarding.
Ref: The Chief Electoral Officer & Secretary to Government, Public (Elections VIII) Department, Secretariat, Chennai email/Letter No.5261/Elec.VIII/2019-1, Dated : 23.03.2019.
----------
I invite kind attention to the reference cited. I send herewith the details of number of flag poles erected with or without permission and the steps taken for removal of same format in respect of Villupuram District as follows.
SI.No Name of the Number of Flag Poles
District No. of Flag Balance to be
With Without
poles removed
permission permission
removed
1 Villupuram Nil 3895 3895 Nil
District Election Officer &
District Collector,
Villupuram District.
Tiruvannamalai District:-
From To
Thiru.K.S.Kandasamy, I.A.S., The Chief Electoral Officer and
District Election Officer and Secretary to Government,
District Collector, Public (Elections VIII) Department,
Tiruvannamalai. Secretariat, Chennai – 9.
Lr.No.A5/35250/2018 Dated: .3.2019
Sir,
Sub: Elections – General Elections to Lok Sabha 2019 MCC W.P.No.17768 of 2016 – Flag Poles Without permission http://www.judis.nic.in 71 removal action taken – report sent. Regarding.
Ref: Chennai – 9. Chief Electoral Officer and Secretary to Government Public (Elections VIII) Department Lr.No. 5261/Elec.VIII/2019-1 Dated 23.03.2019.
----------
I invite kind attention to the above reference cited.
The report called for in the above reference cited is enclosed in respect of Tiruvannamalai District.
http://www.judis.nic.in 72 Yours Sincerely, District Election Officer and District Collector Tiruvannamalai STATUS REPORT ON FLAG POLES IN STATE HIGHWAYS, NATIONAL HIGHWAYS (INCLUDING NHAI) LOCAL BODIES TIRUVANNAMALAI DISTRICT.
SI. Name of the Number of Flag Poles Steps taken for
No Department Removal
With Without
Permission permission
1 State Highways 0 295 All 295 flag poles are
Tiruvannamalai removed.
2 National Highways 0 22 All 22 flag poles are
(including NHAI) removed.
3 Local Bodies - 0 272 All 272 flag poles are
Urban removed.
4 Local Bodies - 2 3016 All 3016 flag poles
Rural are removed.
Grand Total 2 3605
District Election Officer and
District Collector,
Tiruvannamalai.
Pudukottai District:-
From To
Tmt.P.Uma Maheswari, I.A.S., The Chief Electoral Officer &
District Collector, Secretary to Government,
Pudukottai. Public (Elections, VIII) Dept,
Secretariat,
Chennai – 600 009.
R.C.No.B2/20001/2018. Dated : 26.03.2019 Sir, Sub: Elections – Pudukkottai District – General Elections to Lok Sabha, 2019 – MCC – Action taken report on W.P.No.17768/2016 -
Submitted – Regarding.
http://www.judis.nic.in 73 Ref: Letter No.5261/2019-1, dated 23.03.2019, from the Chief Electoral Officer and Secretary to Government, Public (Elections – VIII) Department, Chennai.
----------
Kind attention is solicited to the reference cited.
With reference to the Government letter cited, the line departments, i.e., RD & PR, Highways, NHAI, Municipalities and Town Panchayats have submitted their report on status of removal of flagpoles in connection with the order of Hon'ble Court of Madras in W.P.No.17768 of 2016, dated 08.03.2019 as detailed below.
SI. Name of the Number of Flag Steps taken for
No Department Poles Removal
With Without
Permission permission
1 RD & PR 54 1415 All Flag Poles are removed.
2 Town Panchayats 0 132 All Flag Poles are removed.
3 Pudukkottai 0 56 All Flag Poles are removed.
Municipality
4 Aranthangi 0 37 All Flag Poles are removed
Municipality
5 NHAI – PIU 0 13 vide reference letter
Karaikudi No.NHAI/PIU/Karaikudi/11
024/LA/2019/311,
dated:23.02.2019 SP,
Pudukkottai has been
requested to provide Police
protection for removal of
Flag Poles. Out of 13 Nos.
of Flag Poles. 1 No. of Flag
Pole has been removed
near Keeranur and balance
Flag Poles to be removed.
6 NHAI – PIU 0 15 out of 15 Nos. of Flag
TRICHY Poles. 11 No. of Flag Poles
have been removed and
remaining 4 Nos. Flag
Poles have to be removed.
7 State Highways 0 155 Out of 155 Flag Poles, 126
No. of Flag poles have
been removed and
remaining 29 Nos. Flag
poles have to be removed.
TOTAL 54 1823 Out of 1877 flag poles
http://www.judis.nic.in
74
identified, 1832 were
removed and the
concessionaire has been
instructed to remove
remaining 45 flagpoles
immediately.
Sd/-P.Uma Maheswari,
District Collector,
Pudukkottai.
/ True Copy /
Sp.Tahsildar (Elections)
Kancheepuram District:-
From To
Thiru P.Ponniah, I.A.S., The Chief Electoral Officer and
District Election Officer and Secretary to Government,
District Collector, Public (Elections VIII) Department,
Kancheepuram. Secretariat, Chennai – 9.
RC. 4583/2019/M1/dt. 27.3.2019
Sir,
Sub: General Election to Lok Sabha 2019 – Kancheepuram District – Model Code of Conduct – W.P.No.17768 of 2016
- Removal of Flag Poles – Action taken report submitted - regarding.
Ref: (1) Chief Electoral Officer and Secretary to Government, Public (Elections VIII) Department, Secretariat, Chennai letter No.5261/Elec.VIII/2019-1/dt. 23.3.2019.
(2) This office letter RC.No. 4583/2019/M1/dt. 24.3.2019 ******* I invite kind attention to the reference cited. In continuation of this office letter 2nd cited, I wish to inform that the remaining 27 poles have been removed and updated status report of removal of flag poles in the Kancheepuram District is enclosed in the prescribed format.
Yours faithfully Encl.: As above District Collector, Kancheepuram.
http://www.judis.nic.in 75 REMOVAL OF FLAG POLES IN KANCHEEPURAM DISTRICT ABSTRACT SI. NAME OF ROADS NO.OF POLES IN THE NO.OF NO.OF No THE OFFICE DISTRICT POLES POLES TO REMOVED BE WITH WITH- TOTAL REMOVED PERMISSI- OUT ON 1 Municipali- National 0 80 80 80 0 ty Highways State 0 574 574 574 0 Highways Municipal 0 603 603 603 0 Roads Rural 0 17 17 17 0 Roads 2 Town National 0 108 108 108 0 Panchayat Highways State 0 569 569 569 0 Highways Municipal 0 525 525 525 0 Roads Rural Roads 0 0 0 0 0 3 Block Rural Roads 0 6360 6360 6360 0 Deveopment Officers TOTAL National 0 188 188 188 0 Highways State 0 1143 1143 1143 0 Highways Municipal 0 1128 1128 1128 0 Roads Rural 0 6377 6377 6377 0 Roads G.TOTAL All Roads 0 8836 8836 8836 0 District Collector, Kancheepuram.
http://www.judis.nic.in 76 Tiruvarur District:-
From To
Thiru.T.Anand, I.A.S., The Chief Electoral Officer and
District Election Officer and Secretary to Government,
District Collector, Public (Elections VIII) Department,
Tiruvarur. Secretariat, Chennai – 9.
RC.No.12087/2018/E3, Date : 28.03.2019 Sir, Sub: Elections – General Elections to Lok Sabha 2019 – MCC – W.P.No.17768 of 2016 – sending Action Taken Report – Regarding.
Ref: 1. The Chief Electoral Officer & Secretary to Government, email/lr No.5261/Elec VIII/2019-1, dated 23.03.2019.
2. The Assistant Director (Panchayat), Tiruvarur letter R.C.No.500/2019/A2, Dated 26.03.2019 & 27.03.2019.
3. National Highway report, dated 24.03.2019.
4. The Divisional Engineer (Highways), Tiruvarur, report dated 26.03.2019 & 27.03.2019.
5. The Executive Officers, Nannilam, Peralam, Koradachery, Kuduvasai, Velangaiman, Needamangalam, Muthupettai, Town Panchayat, report dated 26.03.2019 & 27.03.2019.
6. The Municipal Commissioners Thiruthuraipoondi, Koothanallur, Mannargudi and Tiruvarur reports dated 26.03.2019 & 27.03.2019.
-----
I invite kind attention to the reference cited.
I am enclosing herewith the status report on removal of Flag Poles in State Highways, National Highways, Local Bodies in the prescribed format in respect of Tiruvarur District as called for in the reference cited.
Number of Flag Poles Steps taken for Removal
With Permission Without All 2383 Flag Poles have
Permission been removed
0 2383
Yours faithfully
District Collector,
Tiruvarur.
Coimbatore District:-
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77
From To
Thiru.K.Rajamani, I.A.S., The Chief Electoral Officer and
District Election Officer/ Secretary to Government,
District Collector, Public (Elections VIII) Department,
Coimbatore - 18. Secretariat, Chennai – 9.
RC.No.620/2019/A4, Dated 31.03.2019 Sir, Sub: Coimbatore District – Elections – General Elections to Lok Sabha - 2019 - MCC – W.P.No.17768 of 2018 – Flag poles Action taken Report – Sent – Reg.
Ref: CEO & Secretary to Government Public (Elections) Department Letter No.5261/Elec.VIII/2016-1, Dated: 23.03.2019.
-----
I furnish the status on flag poles in respect of Coimbatore district in the following prescribed format, as called for in reference cited.
Local Bodies Number of Flag Poles Steps taken for
S. Removal
With Without
No.
Permission permission
1. Corporation - 1142 Removed
2. Municipality - 247 Removed
3. Town Panchayat - 366 Removed
4. Village Panchayat - 2188 Removed
Total 3943
District Election Officer/
District Collector,
Coimbatore – 18.
8. Apart from the provisions considered in the foregoing paragraphs, deem it fit to extract some more provisions, from the enactments, which deal with obstructions, penalty, etc., relevant for the purpose of this case.
CHENNAI CITY MUNICIPAL CORPORATION ACT, 1919
222. Removal of encroachments:- (1) The commissioner may http://www.judis.nic.in 78 by notice require the owner or occupier of any premises to remove or alter any projection, encroachment or obstruction (other than a door, gate, bar, or groundfloor window) situated against or in front of such premises and in or, over, any street or any public place, the control of which is vested in the corporation.
(2) If the owner of occupier of the premises proves that any such projection, encroachment or obstruction has existed for a period sufficient under the law of limitation to give him a perspective title or where such period is less than thirty years, for a period of thirty years or that it was erected with the consent of any municipal authority duly empowered in that behalf, and that the period, if any, for which the consent is valid has not expired, the corporation shall make reasonable compensation to every person who suffers damage by the removal or alteration of the same.
224. Precautions during repair of streets:- (1) The commissioner shall, so far as is practicable during the construction or repair of any street, drain or premises vested in the corporation,--
(a) cause the same to be fenced and guarded ;
(b) take proper precautions against accident by shoring up and protecting the adjoining buildings ; and
(c) cause such bars, chains or posts to be fixed across or in any street in which any such work is under execution as are necessary in order to prevent the passage of vehicles or animals and avert danger.
(2) The commissioner shall cause such drain, street or premises to be sufficiently lighted or guarded during the night while under construction or repair.
(3) The Commissioner shall, with all reasonable speed, cause the said work to be completed, the ground to be filled in, the said drain, street or premises to be repaired and the rubbish occasioned thereby to be removed.
226. Making holes and causing obstruction:- (1) No person http://www.judis.nic.in 79 shall make a hole or cause any obstruction in any street unless he previously obtains the permission of the commissioner and complies with such conditions as he may impose.
(2) When such permission is granted, such person shall, at his own expense, cause such hole or obstruction to be sufficiently fenced, and enclosed, until the hole or obstruction filled up or removed and shall cause such hole or obstruction to be sufficiently lighted during the night.
(3) If any obstruction is caused in any street by the fall of structures, trees, or the fences, the owner or occupier of the premises concerned shall within twelve hours of the occurrence of such fall, or within such further period as the commissioner may by written order allow, clear the street of such obstruction."
TAMIL NADU DISTRICT MUNICIPALITIES ACT, 1920:
180-A. Public streets open to all:- All streets vested in or to be vested in or maintained by a Municipal Council shall be open to persons of whatever caste or creed.
184. Precautions during repair of streets:- (1) The Executive Authority shall, during the construction or repair of any street, drain or premises vested in the Municipal Council,
(a) cause the same to be fenced and guarded,
(b) take proper precautions against accident by shoring up and protecting the adjoining buildings, and
(c) cause such bars, .chains or posts to be fixed across or in any street in which any such work is under execution as are necessary in order to prevent the passage of vehicles or animals and avert danger.
(2) The Executive Authority shall cause such drain, street or premises to be sufficiently lighted or guarded during the night while under construction or repair.
http://www.judis.nic.in 80 (3) The Executive Authority shall, with all reasonable speed, complete the said work, fill in the ground, and repair the said drain, street, or premises and remove the rubbish occasioned thereby. THE TAMIL NADU PANCHAYATS ACT, 1994 “243. Penalties for breach of rules:- In making any rule under this Act, the Government may provide that a breach thereof shall be punishable with fine which may extend to one hundred rupees, or in case of a continuing breach, with fine not exceeding fifteen rupees for every day during which the breach continues after conviction for the first breach.
244. Bye-laws and penalties for their breach:- (1) Subject to the provisions of this Act and of any other law and to such rules as may be prescribed, a panchayat may, with the approval of the Inspector, make by-laws for carrying out any of the purposes for which it is constituted.
(2) In making a by-law, the panchayat may provide that any person who commits a breach thereof shall be liable to pay by way of penalty such sum as may be fixed by the panchayat not exceeding fifteen rupees or, in case of a continuing breach, not exceeding five rupees for every day during which the breach continues after a penalty has been levied for the first breach.
(3) The Government shall have power to make rules regarding the procedure for the making of by-laws, the publication thereof, and the date on which they shall come into effect.
245. General provisions regarding penalties specified in the Schedules:- (1) Whoever
(a) contravenes any of the provisions of this Act specified in the first and second columns of Schedule II; or
(b) contravenes any rule or order made under any of the provisions so specified; or
(c) fails to comply with any directions lawfully given to him, or http://www.judis.nic.in 81 any requisition lawfully made upon him under or in pursuance of any of the said provisions, shall be punishable with fine which may extend to the amount mentioned in that behalf in the fourth column of the said Schedule.
(2) Whoever after having been convicted of
(a) contravening any of the provisions of this Act specified in the first and second columns of Schedule III, or
(b) contravening any rule or order made under any of the provisions so specified, or
(c) failing to comply with any direction lawfully given to him or any requisition lawfully made upon him under or in pursuance of any of the said provisions, continues to contravene the said provision or the said rule or order, or continues to fail to comply with the said direction or requisition, shall be punishable for each day after the previous date of conviction during which he continues so to offend, with fine which may extend to the amount mentioned in that behalf in the fourth column of the said Schedule.
Explanation. - The entries in the third column of Schedules II and III headed "Subject" are not intended as definitions of the offences described in the provisions specified in the first and second columns thereof, or even as abstracts of those provisions, but are intended merely as references to the subject dealt with therein.
TAMIL NADU PANCHAYATS (PROHIBITION AGAINST OBSTRUCTION IN OR OVER PUBLIC ROADS, REMOVAL OF ENCROACHMENTS, ETC.,) RULES, 2000:
“16. Penalty and Compensation:- (1) The Executive Authority or Commissioner shall have power to permit a person to plant any tree on any public road or other property vesting in or belonging to the Village Panchayat or Panchayat Union Council on such conditions http://www.judis.nic.in 82 as the Executive Authority or Commissioner may impose.
(2) The Executive Authority or Commissioner shall have power to permit a person to fell, remove, destroy, lop, or strip bark or leaves from or otherwise damage any tree referred to in clause (f) of sub-section (1) of Section 131 of the Act, on such conditions as the Executive Authority or Commissioner may impose.” THE TAMIL NADU HIGHWAYS ACT, 2001 “27. Power to cancel permission.-(1) The Highways authority may cancel the permission granted under sub section (2) of section 26 for violation of the conditions of permission subject to which the same has been granted:
Provided that no such cancellation shall be ordered without issuing a notice to the holder of the permit, to make his representation, if any.
(2) Where any permission is cancelled under sub-section (1).
the holder of the permission shall not be entitled to ally amount in respect of such cancellation or to the refund of any rent or charge paid by him advance.
28. Prevention of encroachment.-(1) The Highways authority or any person authorised by it in this behalf shall, at such time as may be considered necessary, conduct such checks and periodical inspection, of the highway boundaries, with the view to ensure the prevention of unauthorised encroachment and the removal of such encroachment.
(2) The Highways authority or any person authorised by it in this behalf, may-
(i) remove, without any notice, any movable temporary structure, enclosure, stall, booth, any article whatsoever hawked, exposed or displayed for sale or any other thing whatsoever by way of encroaching the highway or in any area where the construction or http://www.judis.nic.in 83 development of a highway is undertaken or proposed to be undertaken;
(ii) remove any immovable structure, whether permanent or temporary in nature, encroaching the highway or in the area vested with Government under this Act, after issuing a show cause notice against such removal, returnable within a period of seven days from the date of receipt thereof:
Provided that any representation received within the time limit shall be considered by the authority or officer concerned before passing final orders.
29. Recovery of cost of removal of encroachment:- (1) Whenever any encroachment is removed or any protective work is carried out in respect of any encroachment, the cost thereof shall be recovered from the person responsible for the encroachment, as if it were an arrear of land revenue.
(2) The materials, if any, recovered as a result of the removal or any encroachment shall be handed over to the person responsible for the encroachment on payment of the cost, if any, recoverable under sub-section (1). Where the cost is not paid, the materials seized shall be disposed of, in such manner as may be prescribed.
46. Prevention and rectification of damage to highway.- (1) No person shall willfully cause, or allow any vehicle or animal in his charge to cause, any damage to any highway.
(2) Where any damage has been caused to any highway in contravention of subsection (I), the Highways authority shall repair such damage and recover the expenses incurred in this regard from such person who caused such damage, as if it were an arrear of land revenue, without prejudice to any action that may be taken against such person for such contravention under section 50.
49. Unauthorised occupation of highway.- Whoever -
(a) occupies or makes any encroachment on any highway http://www.judis.nic.in 84 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.
50. Causing damage to highways.- Whoever in contravention of the provisions of section 46 willfully causes or allows any vehicle or animal in his charge to cause any damage to any highway, shall, on conviction, be punishable with fine which may extend to one thousand rupees.
51. General provisions for punishment of offences.- Whoever contravenes any of the provisions of this Act or of any rules or order made thereunder shall, if no other penalty is provided for such offence under this Act, on conviction, be punishable with fine which may extend to one hundred rupees or if having been previously convicted of such offence under this Act, with fine which may extend to two hundred rupees.
Tamil Nadu Highways Rules, 2003:
6. Permission to occupy highway land:- Permission granted by the Highways Authority under sub-section (2) of section 26 shall be in Form ’A’.
7. Conditions subject to which permission may be granted under sub-section (2) of section 26:- Permission under sub-
http://www.judis.nic.in 85 section(2) of section 26 shall be granted subject to the following conditions:---
(i) The structure to be erected or work to be carried out shall be so executed as not to interfere with traffic on the highways or the highway drainage;
(ii) The structure shall be erected in conformity with the plan approved by the Highways Authority and shall not be altered or extended without the prior written permission of the Highways Authority. It shall not be used for any purpose other than the one for which permission is granted;
(iii) The structure shall be constructed and maintained to the satisfaction of the Highways Authority;
(iv) No trees on the highways land shall be removed, cut or damaged or highway accessories or materials removed or damaged without the prior written permission of the Highways Authority and on payment of compensation therefor, as determined by the Highways Authority;
(v)The applicant shall be solely liable for any loss or injury sustained by any person or property as a result of any carelessness negligence or misconduct of the applicant or any of his employees in the erection, setting up, repair or use of the structure on or overhanging on the highway land;
(vi)The applicant shall pay rent for the occupation of or encroachment on a highway within the highway boundaries at the rates indicated in the schedule;
(vii) The applicant shall be liable to pay all taxes, levies or assessments payable to Government or any local authority in respect of the highway land occupied or structure constructed or projected thereon;
(viii) The applicant shall deposit by way of security with the Highway Authority such amount as may be fixed by the Highways http://www.judis.nic.in 86 Authority which will be liable for forfeiture in case of default in the payment of rent and other charges payable to Government or contravention of any of the conditions subject to which the permission is granted;
(ix) On the expiry of the period for which the permission is granted, the land shall be vacated and restored to its original condition and handed over to the Highways Authority;
(x) The permission shall not be transferred to any other person without the prior written permission of the Highways Authority.
8. Rent to be charged for occupation of Highway land:- The Highways Authority shall charge rent for occupation of or encroachment on a highway within the highway boundaries permitted under section 26 at the rates specified in the Table in the Schedule.
9. Recovery of cost of removal of encroachment:- Where the cost of the removal of encroachment or the cost of any protective work carried out in respect of any encroachment is not paid, the cost shall be recovered by disposing of the materials seized, by public auction.
The Control of National Highways (Land and Traffic) Act, 2002:
25. Grant of lease or licence of highway land for temporary use:- The Highway Administration or the officer authorised by such Administration in this behalf may, having regard to the safety and convenience of traffic and subject to such conditions as may be prescribed and on payment of prescribed rent or other charges, grant lease or licence of highway land to a person for temporary use:
Provided that no such lease shall be valid for more than five years at a time from the date on which such lease has been granted unless renewed by the Highway Administration or such officer.
26. Removal of unauthorised occupation:- (1) Where the Highway Administration or the officer authorised by such http://www.judis.nic.in 87 Administration in this behalf is of the opinion that it is necessary in the interest of traffic safety or convenience to cancel any permit issued under sub-section (2) of section 24, it may, after recording the reasons in writing for doing so, cancel such permit and, thereupon, the person to whom the permission was granted shall, within the period specified by an order made by the Highway Administration or such officer restore the portion of the Highway specified in the permit in such condition as it was immediately before the issuing of such permit and deliver the possession of such portion to the Highway Administration and in case such person fails to deliver such possession within such period, he shall be deemed to be in unauthorised occupation of highway land for the purposes of this section and section 27.
(2) When, as a result of the periodical inspection of highway land or otherwise, the Highway Administration or the officer authorised by such Administration in this behalf is satisfied that any unauthorised occupation has taken place on highway land, the Highway Administration or the officer so authorised shall serve a notice in a prescribed form on the person causing or responsible for such unauthorised occupation requiring him to remove such unauthorised occupation and to restore such highway land in its original condition as before the unauthorised occupation within the period specified in the notice.
(3) The notice under sub-section (2) shall specify therein the highway land in respect of which such notice is issued, the period within which the unauthorised occupation on such land is required to be removed, the place and time of hearing any representation, if any, which the person to whom the notice is addressed may make within the time specified in the notice and that failure to comply with such notice shall render the person specified in the notice liable to penalty, and summary eviction from the highway land in respect of http://www.judis.nic.in 88 which such notice is issued, under sub-section (6).
(4) The service of the notice under sub-section (2) shall be made by delivering a copy thereof to the person to whom such notice is addressed or to his agent or other person on his behalf or by registered post addressed to the person to whom such notice is addressed and an acknowledgment purporting to be signed by such person or his agent or other person on his behalf or an endorsement by a postal employee that such person or his agent or such other person on his behalf has refused to take delivery may be deemed to be prima facie proof of service.
(5) Where the service of the notice is not made in the manner provided under sub-section (4), the contents of the notice shall be advertised in a local newspaper for the knowledge of the person to whom the notice is addressed and such advertisement shall be deemed to be the service of such notice on such person.
(6) Where the service of notice under sub-section (2) has been made under sub-section (4) or sub-section (5) and the unauthorised occupation on the highway land in respect of which such notice is served has not been removed within the time specified in the notice for such purpose and no reasonable cause has been shown before the Highway Administration or the officer authorised by such Administration in this behalf for not so removing unauthorised occupation, the Highway Administration or such officer as the case may be, shall cause such unauthorised occupation to be removed at the expenses of the Central Government or the State Government, as the case may be, and impose penalty on the person to whom the notice is addressed which shall be five hundred rupees per square metre of the land so unauthorisedly occupied and where the penalty so imposed is less than the cost of such land, the penalty may be extended equal to such cost.
http://www.judis.nic.in 89 (7) Notwithstanding anything contained in this section, the Highway Administration or the officer authorised by such Administration in this behalf shall have power without issuing any notice under this section to remove the unauthorised occupation on the highway land, if such unauthorised occupation is in the nature of —
(a) exposing any goods or article—
(i) in open air; or
(ii) through temporary stall, kiosk, booth or any other shop of temporary nature,
(b) construction or erection, whether temporary or permanent, or
(c) trespass or other unauthorised occupation which can be removed easily without use of any machine or other device, and in removing such occupation, the Highway Administration or such officer may take assistance of the police, if necessary, to remove such occupation by use of the reasonable force necessary for such removal.
(8) Notwithstanding anything contained in this section, if the Highway Administration or the officer authorised by such Administration in this behalf is of the opinion that any unauthorised occupation on the highway land is of such a nature that the immediate removal of which is necessary in the interest of—
(a) the safety of traffic on the Highway; or
(b) the safety of any structure forming part of the Highway, and no notice can be served on the person responsible for such unauthorised occupation under this section without undue delay owing to his absence or for any other reason, the Highway Administration or the officer authorised by such Administration may make such construction including alteration of any construction as may be feasible at the prescribed cost necessary for the safety referred to in clause (a) or clause (b) or have such unauthorised http://www.judis.nic.in 90 occupation removed in the manner specified in sub-section (7).
(9) The Highway Administration or an officer authorised by such Administration in this behalf shall, for the purposes of this section or section 27, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) issuing commissions for the examination of witnesses; and
(d) any other matter which may be prescribed, and any proceeding before such Administration or officer shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code (45 of 1860) and the Administration or the officer shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
27. Recovery of cost of removal of unauthorised occupation and fine imposed:- (1) Where a Highway Administration or the officer authorised by such Administration in this behalf has removed any unauthorised occupation or made any construction including alteration of construction in respect of any unauthorised occupation or repaired any damage under sub-section (2) of section 36, the expenditure incurred in such removal or repair together with fifteen per cent. of additional charges or any fine imposed under this Act shall be recoverable in the manner hereinafter provided in this section.
(2) The Highway Administration or the officer authorised in this behalf by such Administration shall serve a copy of the bill in the prescribed form indicating therein the expenditure, additional charges or fine recoverable under sub-section (1) on the person from http://www.judis.nic.in 91 whom such expenditure, additional charges or fine is recoverable and the provisions of section 26 relating to the service of notice shall apply for the service of copy of the bill under this sub-section as if for the word “notice” the word “bill” has been substituted in that section.
(3) A copy of the bill referred to in sub-section (2) shall be accompanied with a certificate issued by the Highway Administration or the officer authorised by such Administration in this behalf and the amount indicated in the bill shall be the conclusive proof that such amount is the expenditure actually incurred for all or any of the purposes referred to in sub-section (1) as indicated in the bill.
(4) Where a Highway Administration or the officer authorised in this behalf by such Administration has removed any unauthorised occupation or made any construction including alteration of construction in respect of any unauthorised occupation or repaired any damage under sub-section (2) of section 36, the material, if any, recovered as a result of such removal, construction, alteration or repair shall be retained in possession of the Highway Administration or such officer till the payment of the bill in respect thereof served under sub-section (2) and on payment of such bill such material shall be returned to the person entitled for the material, but in case of the failure of such payment within the time specified for the payment in the bill, the material may be sold by auction by the Highway Administration or such officer and after deduction of the amount payable under the bill from the proceeds of the auction, the balance, if any, shall be returned to the person entitled therefor.
(5) In case where the proceeds of the auction under sub- section (4) is less than the amount recoverable under the bill referred to in that sub-section, the difference between such proceeds and the amount so recoverable or where no such auction has been made, the amount recoverable under the bill shall, in case of failure of the http://www.judis.nic.in 92 payment within the time specified in the bill, be recoverable as the arrears of land revenue.
36. Prevention and repair of damage to Highway:- (1) No person who is in charge of, or in possession of, any vehicle or animal shall, willfully or negligently, cause, or allow such vehicle or animal to cause, any damage to any Highway.
(2) Where, in contravention of sub-section (1), any damage has been caused to any Highway, the Highway Administration shall have such damage repaired at its own expenses and such expenses together with fifteen per cent. thereof as additional charges shall, without prejudice to any other action which may be taken against the person who has so contravened sub-section (1), be recovered from him in accordance with the provisions contained in section 27 as if such expenses and additional charges were the expenses and additional charges recoverable under that section.
39. Offence and penalty:- (1) If any person, who has been evicted from any unauthorised occupation on a highway land under this Act, again occupies any highway land without permission for such occupation under this Act, he shall be punishable with imprisonment for a term which may extend to one year, or with fine which shall not be less than one thousand rupees per square metre of so occupied highway land but which shall not exceed two times the cost of such highway land, or with both.
(2) Any court, convicting a person under sub-section (1), may make an order for evicting that person from such occupied highway land summarily and he shall be liable to such eviction without prejudice to any other action that may be taken against him.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence punishable under sub-section (1) shall be cognizable.
9. All public streets and roads vest in the State or in local bodies, as http://www.judis.nic.in 93 the case may be, and held by them, as trustees on behalf of the public. The decision in C.S.S.Motor Service, Tenkasi and others vs. The State of Madras, represented by the Secretary to the Government of Madras, Home Department and another, reported in AIR 1953 Madras 279 (DB) :
1953 LW Vol.66 - page 85, applies to the case on hand. This court held thus, "22. It is now necessary to examine the contentions of Mr.M.K. Nambiar that as the public pathways vest in the State and as the only rights of the citizens over them are to pass and re-pass, the State as their owner has a right to control their use in such manner as they decide and that no citizen can claim a right to carry on business there except to the extent that the Government might permit. He relied on the following passage in Halsbury's Laws of England, Vol. 16, page 238 and paragraph 288:
"The right of the public is a right 'to pass and re-pass along' a highway for the purpose of legitimate travel, 'not to be on it', except so far as their presence is attributable to a reasonable and proper user of the Highway as such. A person who is found using the highway for other purposes must be presumed to have gone there for such purposes and not with a legitimate object; and as against the owner of the soil he is to be treated as trespasser."
In England the rights of citizens to use public pathways have their origin in Feudal times when extensive estates were held in fee simple by Lords of the Manors. Highways connecting towns lay to a large extent through these estates and citizens had necessarily to pass through them in going from town to town. If a way lead to a market and were a way for all travellers and did communicate http://www.judis.nic.in 94 with a great road, etc., it is a "highway" -- 'Austin's case', I Vest. 189.
"The common definition of a highway that is given in the text books of authority is that it is a way leading from one market town or inhabited place to another inhabited place which is common to all the Queen's subjects"
(per Lord Coleridge L. J. in -- 'Bailey v. Jemieson', (1876) 1 C . P. D. 329 at p. 332).
In such a case the law inferred a dedication of the pathway by the owners for user by the public but the extent of this user was limited to passing and re-passing on the road. "The property is in the owner of the soil subject to an easement for the benefit of the public" (per Heath J. in
-- 'Dovaston v. Payne', 2 H B L 527). Lord Cairns considered that the right o£ the public was not in the nature of an easement but that it was "a dedication to the public of the occupation of the surface of the land for all purposes of passing and re-passing". 'Rangeley v. Midland Rly. Co.', (1867) L. R. 3 Ch. 306 at p. 310. But whatever view be taken of the rights of the public they were limited to passing and re-passing and any excessive user was held to constitute trespass on the property rights of the person who owned the lands on either side of the road.
"If a man uses a land over which there is a right of way for any purpose lawful or unlawful other than that of passing and re-passing he is a trespasser."
So observed Crompton J. in -- 'R. v. Pratt', (1855) 4 El & Bl 860. In -- 'Harrison v. Duke of Butland', (1893) 1 Q B 142, Lopes L. J. observed;
"If a person uses the soil of the highway for any purposes other than that in respect of which the dedication was made and easement acquired, he is a trespasser. The easement acquired by the public is a right to pass and re-pass at their pleasure for purposes of legitimate travel and the use of the soil for any other purpose, whether lawful or unlawful is an infringement of the rights of the owner of the soil who has http://www.judis.nic.in 95 subject to this easement precisely the same state in the soil as he had previously to any easement being acquired by the public."
Vide also -- 'Hiekman v. Maisey', (1900) 1-Q.B. 752. Reliance was also placed on the decision in -- 'Abingdon Rural Council v. City of Oxford Electric Tramways (1917) 2-K. B. 318 for the position that the user of the public streets by motor omnibuses on country roads was an extraordinary traffic.
23. In answer to this contention, the learned advocates for the petitioners quoted the following passage from Halsbury's Laws of England, Vol. 16 p. 185 paragraph 214:
"A right of passage once acquired will extend to more modern forms of traffic reasonably similar to those for which highways were originally dedicated, so long as they do not impose a substantially greater burden on the owner of the soil nor substantially inconvenience persons exercising the right of passage in the manner originally contemplated."
It is argued that as the public pathways were being used in this country for travel by jutkas and stage coaches from time out of mind it would be a legitimate user to travel by stage carriages over them. But there is an even more complete answer to this contention of the respondents. The law of England with reference to rights of the public to use highways is based on a theory which was never part of the law of this country. As already mentioned the highways in England lay to a large extent through private estates and a right by the public to use them was based on an inference that the owner had dedicated them to public user; the extent of the dedication was determined by the user & subject to such dedication the pathways continued to be the private property of the owner. This theory, therefore, has a feudalistic origin and has a historical background which is peculiar to England. In this country the Crown has always been the owner of all highways; which were referred to as 'Raja margas'. The common law of this country did not recognise the doctrine well established in Great Britain that http://www.judis.nic.in 96 "the soil of public highways is presumed to be in the conterminous proprietors and that if a public highway is established by usage over the land of another the soil is still his with all his former lights subject to the public servitude which he has suffered to be established" per Lord Campbell in -- 'Gelbraith v. Armour', 4 Bell's App. 374.
It was never the common law of India that a citizen owned any public highways in private ownership subject to a right in the public in the nature of easements or a right of occupation of surface. The pathways vested solely in the Crown and restrictions on the rights of the public to use them based on the theory of private ownership of the soil in the streets would be foreign to Indian jurisprudence. In -- 'Municipal Commissioners of Madras v. Sarangapani Mudaliar', 19 Mad 154, a Bench of this Court observed as follows:
"The English maxim once a highway always a highway' is based on the theory that the property in a highway is in the owner of the soil subject to an easement in favour of the public. In the case before us this legal fiction peculiar to English law cannot arise for there is no question of any easement whatever. The street it self and the soil thereof is vested in the municipality in trust for the public so that there is no question of dominant or servient heritage."
It is true that Bhashyam Aiyangar J. expressed a dissent from these observations: vide -- 'Sundaram Ayyar v. Municipal Council, Madura', 25 Mad 635 at pages 645 and 648. But the question there was with reference to the rights of the Municipality over streets which had vested in it under the Madras District Municipalities Act and not with reference to the rights of the Government as against a citizen. Indeed the decision was that the vesting under the Act was only of certain rights over streets 'qua' streets and not of the soil which continued to be vested in the Government. In -- 'Baswaswari Swami v. Bellary Municipal Council', (AIR 1916 Mad 613), Sadasiva Aiyar J.. after referring to the differing views expressed in
--'Municipal Commissioners v, Sarangapani Mudaliar', 19 Mad 154 and http://www.judis.nic.in 97
--'Sundaram Ayyar v. Municipal Council of Madura', 25 Mad 635, observed as follows:
"With greatest deference I might be permitted to express some regret that the complications known to English law were thus introduced into this presidency through this judgment of Bhashyam Aiyangar J. The result has been, as pointed out by that very learned Judge himself that there sprang up a sort of divided ownership between the municipal council and the Secretary of State."
There has been considerable discussion in the Indian Courts as to the extent of the rights which a Municipality has when the streets are vested in it under statutes like the District Municipalities Act but no doubt was ever expressed on the extent of the rights of the Government itself over the streets. Two decisions which at first sight might seem to strike a different note, may be noticed. In -- 'Nihalchand v. Azmat AH Khan', a certain municipality took over lands in Zamindari for forming a road and subsequently abandoned a portion of it. The question arose whether the zamindars could lay claim to this portion. In holding they were entitled to it the Court observed :
"Land was either highway or waste land adjoining it & there is a presumption that such land belongs to the owners of the soil of the adjoining land."
Here the land out of which the road was formed was not property which bad vested in the Crown but private property belonging to Zamindars. In -- 'Narharsingji v. Secretary of State', ILR (1941) Bom 226:
AIR 1941 Bom 161, the above observations in -- 'Nihalchand v. Azmat AH Khan', 7 All 362, were quoted and it was held that the road must be presumed to belong to the adjoining proprietors but that again was a case of an estate which had been settled on the representatives of a Royal House under a sannad. The entire estate belonged to the Sannadholder.
24. The true position then is that all public streets and roads vest in the State but that the State holds them as trustee on behalf of the http://www.judis.nic.in 98 public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user as may be requisite for protecting the rights of the public generally. Thus the nature of the road may be such that it may not be suitable for heavy traffic and it will be within the competence of the Legislature to limit the use of the streets to vehicles which do not exceed specified size or weight. Such regulations have been held to be valid as within the police power of the State in America. Vide -- 'Morris v. Duby'. (1927) 71 Law Ed. 966, --'Sproles v. Binford', (1932) 76 Law Ed 1167, and -- 'South Carolina State v. Barnwell Bros.', (1938) 82 Law Ed
734. For the same reason the State might even prohibit the running of transport buses and lorries on particular streets or roads if such running would Interfere with the rights of pedestrians to pass and re-pass as it might if the street is narrow or contested but subject to such limitations the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways."
10. In R.Varadarajan vs. Salem Municipal Council, by its Commissioner, Salem, reported in 1972 (2) MLJ 485, on the aspect of putting up construction or projection or any encroachments, in or over a streets, a member of Salem Municipal Council, challenged the validity of a resolution passed by the said Municipal Council, allotting a place, for the purpose of erecting a statue of a Former Chief Minister. On the facts and circumstances of the case, with reference to the provisions contained in the http://www.judis.nic.in 99 District Municipalities Act, 1920, while quashing the same, a learned Single Judge observed as hereunder:-
"5. Express prohibition is contained in Section 180 against constructing anything which would be an obstruction in or over a street except as provided in the Act. The exceptions are (1) projections such as balconies, sunshades etc. (2) constructions such as steps and drainage (3) temporary erection of pandals and (4) lease of roadsides and street margins. Of these, constructions falling under (1) and (2) above could be permanent, but their location should necessarily be only at the end of the street margin. Only temporary structures, like a pandal could be erected in the middle of a street. From the restrictions placed upon the power of the Council with respect to the location of the places in the street upon which projections etc. could extend and occupation could be permitted by way of lease, and having regard to the scheme underlying Sections 180 and 183, it necessarily follows that the Municipal Council has no power to grant permission to anybody to construct anything permanent in the middle of a public street. It is admitted that the statue in question has been erected in the middle of the Victoria Market Road. - vide paragraph 8 of the counter-affidavit of the first respondent. It is also admitted that the statue is a permanent structure erected over a concrete pedestal 6' × 6' in the middle of the street - vide paragraph i4 of the counter-affidavit of the first respondent. No doubt the place where the statue has been erected is a traffic island. But the existence of a traffic island does not make the construction of the statue lawful. Traffic island is intended for the proper regulation of the traffic and is liable to be removed if such removal is necessary. Its size also is liable to be reduced if there is need for such reduction. Even if the traffic island is removed, the statue Would continue to exist at the same place. Therefore, the fact that the statue has been erected on a traffic island does not make the construction lawful.
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6. The fact that at the place where the statue has been erected the street has 35 feet width on either side would not also make the construction of the statue unobjectionable. It is contended on behalf of the respondents that the construction does not or is not likely to cause public inconvenience or materially interfere with the use of the road as such. These are irrelevant considerations so far as the facts of this case are concerned. Absence of public inconvenience or of material interference with the use of the road as such Would be relevant only in the case of grant of licence to projections and erection specified in Section 183 (1) and to the occupation of roadsides and street margin under Section 183(2). These considerations are wholly irrelevant in a case where the permanent construction is in the middle of a public street. Anything constructed permanently in the middle of a public street would cause hindrance to free passage of vehicular traffic as well as pedestrians and would thus constitute obstruction within the meaning of Section 180."
11. In Olga Tellis and Others vs. Bombay Municipal Corporation and others, reported in 1985 (3) SCC 545, the Hon'ble Supreme Court considered rights of pavement dwellers, eviction and removal, whether violated Articles 19(1)(e) and 21 of the Constitution of India and on the aspect of encroachments on pavements, at paragraph No.43 of the judgment, observed as hereunder:-
"43. In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. The main reason for laying out pavements is to ensure that http://www.judis.nic.in 101 the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing and repassing, are competing claims and that, the former should be preferred to the latter. No one has the right to make use of a public property for a private purpose without the requisite authorisation and, therefore, it is erroneous to contend that the pavement dwellers have the right to encroach upon pavements by constructing dwellings thereon. Public streets, of which pavements form a part, are primarily dedicated for the purpose of passage and, even the pedestrians have but the limited right of using pavements for the purpose of passing and repassing. So long as a person does not transgress the limited purpose for which pavements are made, his use thereof is legitimate and lawful. But, if a person puts any public property to a use for which it is not intended and is not authorised so to use it, he becomes a trespasser. The common example which is cited in some of the English cases (see, for example, Hickman v. Maisey [(1900) 1 QB 752 : 1900 WN 72 (CA)] ) is that if a person, while using a highway for passage, sits down for a time to rest himself by the side of the road, he does not commit a trespass. But, if a person puts up a dwelling on the pavement, whatever may be the economic compulsions behind such an act, his user of the pavement would become unauthorised. As stated in Hickman [(1900) 1 QB 752 : 1900 WN 72 (CA)] it is not easy to draw an exact line between the legitimate user of a highway as a highway and the user which goes beyond the right conferred upon the public by its dedication. But, as in many other cases, it is not difficult to put cases well on one side of the line. Putting up a dwelling on the pavement is a case which is clearly on one side of the line showing that it is an act of trespass. Section 61 of the http://www.judis.nic.in 102 Bombay Municipal Corporation Act lays down the obligatory duties of the Corporation, under clause (d) of which, it is its duty to take measures for abatement, of all nuisances. The existence of dwellings on the pavements is unquestionably a source of nuisance to the public, at least for the reason that they are denied the use of pavements for passing and repassing. They are compelled, by reason of the occupation of pavements by dwellers, to use highways and public streets as passages. The affidavit filed on behalf of the Corporation shows that the fall-out of pedestrians in large numbers on highways and streets constitutes a grave traffic hazard. Surely, pedestrians deserve consideration in the matter of their physical safety, which cannot be sacrificed in order to accommodate persons who use public properties for a private purpose, unauthorizedly. Under clause
(o) of Section 61 of the B.M.C. Act, the Corporation is under an obligation to remove obstructions upon public streets and other public places. The counter-affidavit of the Corporation shows that the existence of hutments on pavements is a serious impediment in repairing the roads, pavements, drains and streets. Section 63(k), which is discretionary, empowers the Corporation to take measures to promote public safety, health or convenience not specifically provided otherwise. Since it is not possible to provide any public conveniences to the pavement dwellers on or near the pavements, they answer the nature's call on the pavements or on the streets adjoining them. These facts provide the background to the provision for removal of encroachments on pavements and footpaths."
12. In Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan and others, reported in 1997 (11) SCC 121, on the aspect of encroachment of pavements of the roads, rights of the encroachers, the Hon'ble Supreme Court, at paragraph Nos.8, 10 and 22, observed thus:-
http://www.judis.nic.in 103 "8. It is for the court to decide in exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure which is reasonable, fair and just or it is otherwise. Footpath, street or pavement are public property which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public roads. The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security. That facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. The claim of the pavement-
dwellers to construct huts on the pavement or road is a permanent obstruction to free passage of traffic and pedestrians' safety and security. Therefore, it would be impermissible to permit or to make use of the pavement for private purpose. They should allow passing and repassing by the pedestrians. No one has a right to make use of a public property for their private purpose without the requisite authorisation from the competent authority. It would, therefore, be but the duty of the competent authority to remove encroachments on the pavement or footpath of the public street obstructing free flow of traffic or passing or repassing by the pedestrians.
10. The Constitution does not put an absolute embargo on the deprivation of life or personal liberty but such a deprivation must be according to the procedure, in the given circumstances, fair and reasonable. To become fair, just and reasonable, it would not be enough that the procedure prescribed in law is a formality. It must be pragmatic and realistic to meet the given fact-situation. No inflexible rule of hearing and due application of mind can be insisted upon in every or all cases. Each case depends upon its own backdrop. The removal of encroachment needs urgent action. But in this behalf what requires to be done by the http://www.judis.nic.in 104 competent authority is to ensure constant vigil on encroachment of the public places. Sooner the encroachment is removed when sighted, better would be the facilities or convenience for passing or repassing of the pedestrians on the pavements or footpaths facilitating free flow of regulated traffic on the road or use of public places. On the contrary, the longer the delay, the greater will be the danger of permitting the encroachers claiming semblance of right to obstruct removal of the encroachment. If the encroachment is of a recent origin the need to follow the procedure of principle of natural justice could be obviated in that no one has a right to encroach upon the public property and claim the procedure of opportunity of hearing which would be a tedious and time- consuming process leading to putting a premium for high-handed and unauthorised acts of encroachment and unlawful squatting. On the other hand, if the Corporation allows settlement of encroachers for a long time for reasons best known to them, and reasons are not far to seek, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary. If the encroachment is not removed within the specified time, the competent authority would be at liberty to have it removed. That would meet the fairness of procedure and principle of giving opportunity to remove the encroachment voluntarily by the encroachers. On their resistance, necessarily appropriate and reasonable force can be used to have the encroachment removed. Thus considered, we hold that the action taken by the appellant-Corporation is not violative of the principle of natural justice.
22. Empirical study of urban and rural population in India discloses that due to lack of civic facilities and means of livelihood people from rural areas constantly keep migrating to the urban areas resulting in mushroom growth of slums and encroachment of the pavements/footpaths etc. Every municipal corporation has statutory obligation to provide free flow of traffic and pedestrians' right to pass and repass freely and safely;
http://www.judis.nic.in 105 as its concomitance, the corporation/municipality have statutory duty to have the encroachments removed. It would, therefore, be inexpedient to give any direction not to remove, or to allow the encroachments on the pavements or footpaths which is a constant source of unhygienic ecology, traffic hazards and is risk-prone to the lives of the pedestrians. It would, therefore, be necessary to permit the Corporation to exercise the statutory powers to prevent encroachment of the pavements/footpaths and to prevent construction thereon. As held earlier, the Corporation should always be vigilant and should not allow encroachments of the pavements and footpaths. As soon as they notice any encroachment they should forthwith take steps to have them removed and not allow them to settle down for a long time. It is stated in their affidavit that they are giving 21 days' notice before taking action for the ejectment of encroachers. That procedure, in our view, is a fair procedure and, therefore, the right to hearing before taking action for ejectment is not necessary in the fact-situation. But the Commissioner should ensure that everyone is served with a notice and as far as possible by personal service and if it is not possible for reasons to be recorded in the file, through affixture of the notice on the hutment, duly attested by two independent panchas. This procedure would avoid the dispute that they were not given opportunity; further prolongation of the encroachment and hazard to the traffic and safety of the pedestrians."
13. In M.I. Builders Private Limited vs. Radhey Shyam Sahu and Others, reported in 1999 (6) SCC 464, the Hon'ble Supreme Court, considered the case of construction of an underground Air Conditioned Shopping Complex (Palika Bazar), in a park of historical importance.
Construction was found to be contrary to law. On the aspect of demolition http://www.judis.nic.in 106 of such construction, equity was claimed by the builder. Noticing that the High Court had already directed dismantling the whole project and for restoration of the park to its original condition, at paragraph No.73, the Hon'ble Supreme Court ordered, as hereunder:-
"73. The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots."
The Hon'ble Supreme Court in M.I. Builders Private Limited's case, held that 'doctrine of the public trust' is applicable to public properties, such as http://www.judis.nic.in 107 shore lands and parks, as hereunder:-
"51. In the treatise Environmental Law and Policy: Nature, Law, and Society by Plater Abrams Goldfarb (American Casebook Series, 1992) under the Chapter on Fundamental Environmental Rights, in Section 1 (The Modern Rediscovery of the Public Trust Doctrine) it has been noticed that “long ago there developed in the law of the Roman Empire a legal theory known as the ‘doctrine of the public trust’ ”. In America public trust doctrine was applied to public properties, such as shore lands and parks. As to how that doctrine works it was stated:
“The scattered evidence, taken together, suggests that the idea of a public trusteeship rests upon three related principles. First, that certain interests ‘like the air and the sea’ have such importance to the citizenry as a whole that it would be unwise to make them the subject of private ownership. Second, that they partake so much of the bounty of nature, rather than of individual enterprise, that they should be made freely available to the entire citizenry without regard to economic status. And, finally, that it is the principal purpose of a Government to promote the interests of the general public rather than to redistribute public goods from broad public uses to restricted private benefit….” With reference to a decision in Illinois Central Railroad Co. v. Illinois [146 US 387 : 36 L Ed 1018 (1892)] it was stated that “the Court articulated in that case the principle that has become the central substantive thought in public trust litigation. When a State holds a resource which is available for the free use of the general public, a court will look with considerable scepticism upon any governmental conduct which is calculated either to reallocate the resource to more restricted uses or to subject public uses to the self-interest of private parties”.
This public trust doctrine in our country, it would appear, has grown from Article 21 of the Constitution."
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14. In A.Abdul Farook vs. Municipal Council, Perambalur and others, reported in (2009) 15 SCC 351, the Hon'ble Supreme Court considered the validity of State action in erecting an arch on highways.
After considering the provisions, Sections 2(8) of the Tamil Nadu Highways Act, which defines 'encroachment', Section 2(12) which defines 'Highway' and Section 2(13) which defines Highways Authority and other provisions, relating to the prevention of unauthorised occupation and encroachment, on the highway and removal of encroachments, and taking note of doctrine of public trust, the Hon'ble Supreme Court at paragraph Nos.27, 31, 32 and 38, observed and ordered as hereunder:-
27. 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 unauthorised occupation of highway or encroachment thereof would, however, apply to third parties and not to the Highways 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 (sic could) exercise its jurisdiction in terms of GOMs No. 32.
31. 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 granted for construction of http://www.judis.nic.in 109 arches in honour of its leaders or God or for depicting the name of the place. 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.
32. 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 [(1997) 1 SCC 388] , M.I. Builders (P) Ltd. v. Radhey Shyam Sahu [(1999) 6 SCC 464] and Intellectuals Forum v. State ofA.P. [(2006) 3 SCC 549 : (2006) 2 Scale 494] , should not have granted such permission. In any event, with the coming into force of the said Act, GOMs No. 32 must be held to have been repealed. The State Government, therefore, had no jurisdiction to pass the order impugned in the writ application.
38. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeals are allowed with costs payable by Respondents 1 and 6. Counsel's fee assessed at Rs 50,000 (Rupees fifty thousand only)."
15. In P.N.Srinivasan (Deceased) and another vs. State of Tamil Nadu, reported in (2014) 2 MLJ 355, erection of a statue was questioned, on the grounds that the same obstructed clear vision of motorists and free flow of vehicular traffic. Hon'ble Supreme Court, by observing that State cannot be an exception to claim erection of permanent structures, like a statue on roads, at paragraph Nos.26 to 29, ordered thus:-
"Government Policy - must be for public good:
26. The Constitution of India guarantees right to move throughout http://www.judis.nic.in 110 the territory of India. This right under Article 19(1)(d) cannot be construed in a very narrow manner. It would cover all incidental rights which would make this constitutional right meaningful. Nobody has got a right to claim erection of permanent structures like statues on roads. The State is not an exception. The Government is for the people. Therefore any policy adopted by the Government must be for public good. The Government symbolises the will and wishes of people. The policy must reflect such social aspirations of the people. The Government have no special right to erect a statue on a public road. The regulations regarding prohibition of permanent structure like statues on roads would equally apply to the State. The fact that on occasions, the Government was permitted or action of Government was upheld, would not give a vested right to undertake similar actions at all point of time. The welfare of the public must be the paramount consideration of State. In case the policy of the State violates statutory provisions or offend the fundamental right given to the citizens, including equality clause, judicial review is permissible even in the field of Government policy. The immunity given to the policy would not be extended to the consequential actions which were not contemplated by the policy. In case while executing the policy the executive have gone beyond the policy adopted by the State in a particular subject matter, judicial review is available to prevent such transgressions.
27. The decision to honour public personalities, artists of repute, etc., must not be at the cost of public convenience. The public roads are nothing but public property. The roads are formed by acquiring land. The citizen is deprived of his land by the process of acquisition. The acquisition is justified in larger public interest. The roads constructed after such acquisition are for public purpose. It is only for the welfare and betterment of public all such developmental activities are undertaken.
The people should be allowed to enjoy the benefits of such development. The National Highways and State Highways constructed by acquiring private property and by using public funds, can be used only for the http://www.judis.nic.in 111 travelling needs of public. It cannot be converted for other collateral purposes like erection of statues and memorials.
28. The Court exercises its jurisdiction in furtherance of justice. The Court should therefore interfere in case there is a complete apathy towards the common man and a cynical unconcern for the law of the land.
Public Roads not for erection of statues:
29. The roads and streets are meant for pedestrians and motorists. It is not meant for erection of statues. There is no dispute that the leaders and stalwarts should be respected in an appropriate manner. By erecting statues on the middle of public road, by giving difficulties to the motorists and general public, actually we are showing disrespect to such distinguishing personalities the memorials should be erected only at unobjectionable places and in any case not on the middle of roads. The names of celebrated artists like Thiru Sivaji Ganesan should not be dragged into the midst of litigation by the State by erecting his statue on the middle of road, to the dislike of motorists and pedestrians."
16. From the submissions and the status reports submitted by the 32 District Collectors in the State of Tamil Nadu, two flagpoles in Thiruvannamalai are not removed, as they were erected with the permission of the local body. Three poles are not removed, as there were covered by Court orders and all other flagpoles, erected without permission of the competent authorities, have been removed. It is alarming that as against several thousands of flag poles in the State only two poles have been erected with permission and the remaining three covered, by Court orders.
Ever since action has been taken for removal of unauthorised poles, none http://www.judis.nic.in 112 appeared before the authorities or before us to contend, and substantiate that there is any valid permission for erection of such poles. Illegality in erection of poles without obtaining permission from the competent authorities, is per se apparent. Question to be considered on the prayer sought for is whether the illegality in erecting the poles, across the State, without permission from the competent authorities, whomsoever under the above Statutes, be allowed to be resurrected, after the declaration of elections. Nobody has a right to encroach upon properties, which vest with the Statutory authorities.
17. Measures taken during elections, on the basis of Code of Conduct, alone would not serve the purpose, in the light of the statutory provisions extracted supra. There should be statutory compliance, in the matter of erection of poles. So also discharge of statutory duties cast upon the authorities not to permit erection of poles without adherence to the provisions of the Statute. Departure from law should not be permitted. Any encroachment on a public property, road, street, etc., would eventually lead to congestion of traffic, inconvenience to the user of roads, streets and such other places vested with the authorities. Object of the statutory provisions quoted supra, is not to allow any unauthorised occupation of such http://www.judis.nic.in 113 places and in the case on hand, erection of flag poles. Local Bodies, Government, and Highways Department are duty bound to initiate anti-
encroachment measures and continue to do so. At this juncture, we deem it to observe that it is endeavour of this Court is to state there can be poles, but only with the permission of the competent authorities.
18. It is well settled that illegality cannot be perpetuated. Reference can be made to few decisions:
(i) In Gursharan Singh v. New Delhi Municipal Committee reported in (1996 SCC (2) 459), it has been held as follows:-
“There appears to be some confusion in respect of the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. This guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or court in a negative manner. To put it in other words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court, that the same irregularity or illegality be committed by the State so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are not sanctioned by law in their favour on principle of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce http://www.judis.nic.in 114 such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.”
(ii) In Kastha Niwarak Grahnirman Sahakari Sanstha Maryadit, Indore v. President, Indore Development Authority, reported in (2006) 2 SCC 604, it has been held as follows:-
8. .........Two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the appellant cannot strengthen its case. It has to establish strength of its case on some other basis and not by claiming negative equality. (See Union of India v. International Trading Co.)
(iii) In Directorate of Film Festivals v. Gaurav Ashwin Jain, reported in (2007) 4 SCC 737 , the Supreme Court has held as follows:-
http://www.judis.nic.in 115 “22. When a grievance of discrimination is made, the High Court cannot just examine whether someone similarly situated has been granted a relief or benefit and then automatically direct grant of such relief or benefit to the person aggrieved. The High Court has to first examine whether the petitioner who has approached the court has established a right, entitling him to the relief sought on the facts and circumstances of the case. In the context of such examination, the fact that some others, who are similarly situated, have been granted relief which the petitioner is seeking, may be of some relevance. But where in law, a writ petitioner has not established a right or is not entitled to relief, the fact that a similarly situated person has been illegally granted relief, is not a ground to direct similar relief to him. That would be enforcing a negative equality by perpetuation of an illegality which is impermissible in law. The principle has been stated by this Court in Chandigarh Admn. v. Jagjit Singh thus:
Generally speaking, the mere fact that the respondent Authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent Authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent Authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again.
http://www.judis.nic.in 116 The illegal/unwarranted action must be corrected, if it can be done according to lawindeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with lawbut even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent Authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners' case is similar to the other persons' case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a coursebarring exceptional situationswould neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles.” http://www.judis.nic.in 117
(iv) In Shanti Sports Club v. Union of India reported in (2009) 15 SCC 705, the Supreme Court has held as follows:-
“14. Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The concept of equality enshrined in that article is a positive concept. The Court can command the State to give equal treatment to similarly situated persons, but cannot issue a mandate that the State should commit illegality or pass wrong order because in another case such an illegality has been committed or wrong order has been passed. If any illegality or irregularity has been committed in favour of an individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court and seek a direction that the same irregularity or illegality be committed in their favour by the State or its agencies/instrumentalities. In other words, Article 14 cannot be invoked for perpetuating irregularities or illegalities. In Chandigarh Admn. v. Jagjit Singh this Court made a lucid exposition of law on this subject. The facts of that case were that the respondents, who had given the highest bid for 338 sq yd plot in Sector 31-A, Chandigarh defaulted in paying the price in accordance with the terms and conditions of allotment. After giving him opportunity of showing cause, the estate officer cancelled the lease of the plot. The appeal and the revision filed by him were dismissed by the Chief Administrator and the Chief Commissioner, Chandigarh respectively. Thereafter, the respondent applied for refund of the amount deposited by him. His request was accepted and the entire amount paid by him was refunded. He then filed a petition for review of the order passed by the Chief Commissioner, which was dismissed. However, the officer concerned entertained the second review and directed that the plot be restored to the respondent. The latter did http://www.judis.nic.in 118 not avail benefit of this unusual order and started litigation by filing writ petition in the High Court, which was dismissed on 18-3-1991. Thereafter, the respondent again approached the estate officer with the request to settle his case in accordance with the policy of the Government to restore the plots to the defaulters by charging forfeiture amount of 5%. His request was rejected by the estate officer. He then filed another writ petition before the High Court, which was allowed only on the ground that in another case pertaining to Smt Prakash Rani, the Administrator had restored the plot despite dismissal of the writ petition filed by her. While reversing the order of the High Court, this Court observed as under: (Jagjit Singh case, (2005 SCC)1) 745.
8. We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent Authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination.
The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent Authority to repeat the illegality or to pass another unwarranted order. (emphasis in original) The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent Authority has passed one illegal/unwarranted order, it does not entitle the High http://www.judis.nic.in 119 Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law indeed, wherever it is possible, the court should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. (emphasis supplied) By refusing to direct the respondent Authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioner's case is similar to the other person's case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case (sic court) nor is his case. In our considered opinion, such a course barring exceptional situations would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles.
http://www.judis.nic.in 120 The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world.
72. Similar is the ratio of the judgments in Narain Das v. Improvement Trust, Amritsar23; Gursharan Singh v. NDMC24, Jaipur Development Authority v. Daulat Mal Jain19, Yadu Nandan Garg v. State of Rajasthan20, State of Haryana v. Ram Kumar Mann25, Faridabad CT Scan Centre v. D.G. Health Services26, Style (Dress land) v. UT, Chandigarh27, State of Bihar v. Kameshwar Prasad Singh28, Union of India v. International Trading Co.29, Ekta Shakti Foundation v. Govt. of NCT of Delhi30, Sanjay Kumar Manjul v. UPSC31, K.K. Bhalla v. State of M.P.32, National Institute of Technology v. Chandra Shekhar Chaudhary33, Vice-Chancellor, M.D. University v. Jahan Singh34, State of Kerala v. K. Prasad35, Punjab SEB v. Gurmail Singh36 and Panchi Devi v. State of Rajasthan37.”
19. Erection of poles without permission is an encroachment, as per provisions of the statutes extracted supra. Such encroachments noticed already have been moved. Therefore, it is for the authorities under the above-said statutes to ensure that there is no fresh encroachment after the declarations of elections. There shall not be any flagpoles with or without construction, on any streets, roads, state or national highways, as the case may be, without permission of the authorities under the above-said Acts.
20. Judicial notice be taken that normally when functions are held by http://www.judis.nic.in 121 the political parties or other organizations or by individuals, temporary poles are erected and while doing so, roads and pavements are damaged.
Judicial notice is also taken that they are not repaired or resurfaced immediately, but, at times repaired after considerable time, resulting in loss of exchequer to the Government or Local bodies, as the case may be. In the light of the statutory provisions, providing penal action and recovery, hitherto, penal action and steps to recover the damages caused, to the roads, streets, etc, be assessed and accordingly action taken. Respondents are directed to issue necessary instructions to all the subordinate officers for strict compliance of this order.
21. Field Officers be accordingly directed to report to the concerned district authorities, to take action. Field Officers be instructed that violation of any direction issued by the authorities, departmental action would be taken. Respondents to ensure strict compliance of this order.
Assistance of police be given wherever necessary.
22. If any permission is sought for to put up flag poles, the same shall be accorded in accordance with the statutory provisions. District Collectors and the competent authorities under the above Statutes are directed to monitor enforcement of the orders passed by this Court periodically, once in http://www.judis.nic.in 122 a month. If there are violators, stringent action should be taken. District Collectors are also directed to periodically review once in two months and send a report to the Heads of the Departments.
23. Mr.Niranjan Rajagopalan, learned counsel for the Election Commission of India, submitted that earlier the two poles in Thiruvannamalai, have been mistakenly reported by the respondents as permitted, by local body. But, they do not have permission. Those poles have been removed.
24. With the above directions, this Writ Petition is ordered. There shall be no order as to costs.
(S.M.K., J.) (S.P., J.) 02.04.2019 asi/asr Index : Yes/No Internet : Yes Speaking Order : Yes/No To
1. The Chief Electoral Officer, Secretary to Government, Public (Election) Department, Secretariat, Chennai – 600 009.
2. The Chief Secretary, http://www.judis.nic.in 123 Government of Tamilnadu, Secretariat, Fort St.George, Chennai – 600 009.
3. The Secretary to Government, Revenue Department, Government of Tamilnadu, Secretariat, Fort St.George, Chennai – 600 009.
4. The Secretary to Government, Home Department, Government of Tamilnadu, Secretariat, Fort St.George, Chennai – 600 009.
5. The Secretary to Government, Highways Department, Government of Tamilnadu, Secretariat, Fort St.George, Chennai – 600 009.
6. The Secretary to Government, Department Rural Development, Government of Tamilnadu, Secretariat, Fort St.George, Chennai – 600 009.
7. The Secretary to Government, Department Municipal Administration, Government of Tamilnadu, Secretariat, Fort St.George, Chennai – 600 009.
8. The Commissioner of Land Administration, Department of Land Administration, Chepauk, Chennai – 600 005.
9. The Regional Officer, National Highways Authority of India, Sri Tower, 3rd Floor, D.P.34, SP Industrial Estate, http://www.judis.nic.in 124 Guindy, Chennai – 32.
http://www.judis.nic.in 125 S.MANIKUMAR, J.
and SUBRAMONIUM PRASAD, J.
asi/asr W.P.No.17768 of 2016 02.04.2019 http://www.judis.nic.in