Madras High Court
R.Shanmuga Perumal vs The District Collector on 8 November, 2017
Bench: M.Venugopal, Abdul Quddhose
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.11.2017
CORAM
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
AND
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
W.P.(MD)No.20478 of 2017
and
W.M.P(MD)No.16747 of 2017
R.Shanmuga Perumal : Petitioner
.vs.
1.The District Collector,
at Nagercoil,
Kanyakumari District.
2.The Divisional Engineer,
National Highway,
75, Raman Pillai Street,
Nagercoil, Kanyakumari District.
3.The Assistant Director of Town Panchayat,
The District Collectorate Campus,
Nagercoil, Kanyakumari District.
4.The Divisional Engineer,
State Highways,
P.W.D Compound,
Nagercoil-1,
Kanyakumari District.
5.The Executive Officer,
Kanyakumari Special Grade Town Panchayat Office,
Kanyakumari,
Kanyakumari District. : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying this Court for issuance of a Writ of Mandamus directing the
respondents not to grant permission to install any temporary shops on the
platform and blocking in National Highway-7 from ?0' point to Police Station
as well as not to permit any shops on the platform of the road from Kamarajar
Mandapam to sunset point of Kanyakumari at Kanyakumari District so as to
enable the pilgrims and tourists to enjoy their trips peacefully without any
hindrance by considering the representation of the Petitioner, dated
10.10.2017.
!For Petitioner :M/s.S.C.Herold Singh
For Respondents :Mr.T.R.Janarthanan
1 to 4 Additional Govt.Pleader
For Respondent-5 :Mr.R.Karthikeyan
Addl.Govt.Pleader
for Mr.Aayiram K.Selvakumar
Standing Counsel for R5
:ORDER
[Order of the Court was made by M.VENUGOPAL, J.] This Writ Petition has been filed seeking issuance of a Writ of Mandamus directing the respondents not to grant permission to install any temporary shops on the platform and blocking in National Highway-7 from ?0' point to Police Station as well as not to permit any shops on the platform of the road from Kamarajar Mandapam to sunset point of Kanyakumari at Kanyakumari District so as to enable the pilgrims and tourists to enjoy their trips peacefully without any hindrance by considering the representation of the Petitioner, dated 10.10.2017.
2.Heard both sides. Counter of Fifth Respondent is filed.
3.By consent, the main Writ Petition itself is taken up for final disposal.
4.According to the Petitioner, he is eking out his livelihood by running a Travel Agency. His specific case is that Kanyakumari District attracts more tourists and most of the tourists used to come and stay at Kanyakumari to view the sun-rise and sun-set. Kanyakumari District is of 'historic importance' and it has numerous natural resources and indeed, the 'nature', invites the people to enjoy the climate, greeneries, waterfalls, dams, temples etc. As a matter of fact, the tourists used to visit place in and around this District.
5.The version of the Petitioner is that especially during Tamil month of Karthigai, lakhs of Ayyappa devotees used to visit Kanyakumari on their way to Sabarimalai. As several people are visiting Kanyakumari daily, several petty shops and other shops are constructed and running in the tourist place of Kanyakumari on both sides of the road. The platform from the Government Guest House to National Highway No.7, ,'0' point is very narrow and is still getting decreased due to the encroachment of shops on both sides of the platform. Apart from that, from Kamarajar Mandapam to sunset point, the platform is meant for the use by the pilgrims and public, is getting reduced due to the encroachment of shops on both sides of the platform by encroaching the same.
6.The plea of the Petitioner is that it is the duty of the State to provide free drinking water in Kanyakumari and there is no proper drinking water facilities provided by the respondents for the welfare of tourists who used to visit Kanyakumari and there is no hygienic toilets provided free of cost in Kanyakumari thereby forcing the poor to pay and use toilets.
7.The core contention advanced on behalf of the Petitioner is that it is the prime duty of the Respondents to provide drinking water and keep the places clean, as thousands of people used to visit Kanyakumari daily and it is the duty of the Respondents to keep the road and platform free from traffic and encroachment. Also, that the Respondents are receiving huge Entry Fee from the people who come by vehicles, which is for the purpose of development of the said area. But the Fifth Respondent has not taken any effective steps to ensure that the tourists who visited Kanyakumari to provide all facilities.
8.The Learned Counsel for the Petitioner proceeds to point out that the Respondents are permitting the encroachers to occupy the platform and put up small shops by disturbing the free usage of the platform by the pilgrims and tourists. The Respondents now have proposed to permit the persons to put up temporary shops on both sides of platform by the tender called for by the Respondent by its proceedings, dated 14.10.2017 unmindful of the increase in tourists and pilgrims who used the platform for their safe transportation.
9.Advancing his arguments, the Learned Counsel for the Petitioner strenuously projects an argument that if the Respondents permit the concerned persons to put up temporary shops without considering the welfare of the public as well as pilgrims, it would cause great inconvenience to the people, children, pregnant ladies to use the platform and the people are made to walk for a long distance. The ambulance vehicle, Fire Service Vehicle and other three vehicles of the Fifth Respondent used to go through the platform for the purpose of transportation.
10.The grievance of the Petitioner is that the activities of the Respondents, proposal to permit to install temporary shops on both sides of the platform, would affect the pilgrims as well as the public, who use the platform. Further, it is the duty of the Respondents to maintain the platform free from any traffic or encroachment. The Respondents without considering the welfare of the people, with an ulterior motive, proposed to grant permission to have temporary shops on the platforms, that too, during the peak season. Therefore, the submission of the Learned Counsel for the Petitioner is that if temporary shops are permitted to be located, then the pilgrims and the people who used to visit Kanyakumari would be greatly affected and they would lose the charm of visiting. Even Hawkers vending on tricycles and four-wheeled carts, stops their carts on the road for vending, which further shrinks the road and causes huge inconvenience to the pedestrians.
11.The Learned Counsel for the Petitioner brings it to the notice of this Court that the Fifth Respondent through his proceedings, dated 14.10.2017 had called for tender for granting licence in respect of temporary shops. As a matter of fact, in the said notification in column No. 4 to 11, it is specifically mentioned there as 'temporary shops'. As such, the Petitioner had sent a representation on 10.10.2017 to the First Respondent/The District Collector at Nagercoil, Kanyakumari District not to permit any temporary shops on the road and platform. Besides the receipt of the same, no effective steps have been taken by the Respondents. Also that, the Third Respondent is taking coercive steps to conduct auction for temporary shops pursuant to the notification dated 14.10.2017. The auction is slated on 9.11.2017. Therefore, if the Fifth Respondent is permitted to put up temporary shops by interfering with the free usage of platform by the pilgrims and tourists,not only people of Kanyakumari District, but also the pilgrims and devotees would be greatly affected. Since the Petitioner's representation, dated 10.10.2017 has not met with any positive response from the concerned Respondent, the Petitioner has filed the present Writ Petition to consider his representation, dated 10.10.2017.
12.The Learned Counsel for the Petitioner submits that Section 259 of the Tamil Nadu District Municipalities Act, 1920 speaks of 'Public Markets' and the place where the proposed temporary shops are to be established or to be erected are not coming within the ambit of the term 'Public Markets' Also, the Learned Counsel for the Petitioner by referring to the ingredients of Section 270 of the Tamil Nadu District Municipalities Act, 1920, contends that the said Section unerringly points out to 'power to prohibit or regulate the sale of articles in public streets' and inasmuch as the proposed place where the shops are to be erected are not public streets. The stand of the Respondents are untenable in the eye of Law.
13.The Learned Counsel for the Petitioner draws the attention of this Court to Section 180 of the Tamil Nadu District Municipalities Act, 1920 which speaks of 'prohibitions against obstructions in or over streets'. Moreover, the Learned Counsel for the Petitioner adverts to Section 180-A of the 'Act', 1920, which enjoins 'Public streets are open to all'.
14.Per contra, it is the submission of the learned Additional Government Pleader appearing for the Fifth Respondent that the Writ Petitioner is a Tourist Agent and serving as Guide having vested personal interest and therefore, he is making every endeavour to restrain the Fifth Respondent in conducting auction for temporary shops. Furthermore, there is no element of 'Public Interest) involved in the present Writ Petition. Also that, the representation of the Petitioner, dated 10.10.2017 was forwarded to the Fifth Respondent through proceedings, dated 14.10.2017. On the receipt of memo from the Third Respondent, the Fifth Respondent had considered the representation of the Petitioner and an order was passed on 25.10.2017 stating that there is no violation of the Act and Rules in force and the temporary shops are established for the convenience of the tourists to purchase sea shells and other sea-based articles. Moreover, the tender for temporary shops from Gandhi Mandapam to sunset point and Gandhi Mandapam to State Guest House and Sannathi Street is conducted by the Fifth Respondent for the past 20 years and a public tender-cum-auction notice, dated 14.10.2017 was issued in accordance with Law.
15.The Learned Counsel for the Fifth Respondent points out that in respect of 'Ayyappa Season'' every year, the District Administration, headed by the District Collector, at Nagercoil, Kanyakumari District conducts meeting with all departments for making arrangements and facilities to the tourists at Kanyakumari. In reality, the temporary shops will be established from 17.11.2017 to 20.1.2018 thereby making convenience to the tourists to purchase articles made up by seashells and other sea-based articles and other items. During Ayyappa Season, all the traffic and vehicles will not be permitted in the above streets and it will be stopped before four way track near sunset point and all the vehicles should be parked at parking place only. As such, there is no inconvenience caused to the tourists as well as to the general public.
16.Besides the above, the Learned Counsel for the fifth Respondent contends that the Fifth Respondent is empowered to regulate the public market and conduct tender cum auction as per the provisions of the Tamil Nadu District Municipalities Act, 1920. The Learned Counsel for the Fifth Respondent falls back upon the ingredients of Section 259 of the Tamil Nadu District Municipalities Act, 1920 which relates to Public Markets and the same runs as under:
''259.Public Markets:- All markets which are (acquired)constructed , repaired or maintained out of the municipal fund shall be deemed to be public markets; and such markets shall be open to persons of whatever case or creed.''
17.The Learned Counsel for the Fifth Respondent points out that as per Section 260 of the Tamil Nadu District Municipalities Act, 1920, the Selection Grade Council of Town Panchayat has power to provide place for use as Public Markets and as such, there is no illegality committed by the Fifth Respondent. In this connection, it is worthwhile to extract the ingredients of Section 260 of the Tamil Nadu District Municipalities Act, 1920, which run as under:
''260.Powers in respect of public markets.--(1) The council may provide places for use as public markets.
((2)The Council may in any public market levy anyone or more of the following fees at such rates and may place the collection of such fees under the management of such persons as may appear to it proper or may farm out such fees(for any period not exceeding three years at a time and) on such terms and subject to such conditions as it may deem fit:
(a)fees for the use of or, for the right to expose goods for sale in, such markets;
(b)fees for the use of shops, stalls, pens or stands in such markets;
(c)fees on vehicles or pack-animals carrying, or on persons bringing goods for sale in such markets;
(d)fees on animals brought for sale into, or sold in, such markets; and
(e)licence fees on brokers, commission agents, weigh-men and measures practising their calling in such markets.) (3)The council may, with the sanction of the (State Government), close any public market or part thereof.''
18.Moreover, on behalf of the Fifth Respondent, a reference is made to Section 270 of the 'Act', 1920 which pertains to power to 'prohibit or regulate sale of articles in public streets', and the same is extracted as under:
''270.Power to prohibit or regulate sale of articles in public streets:- The (executive authority) may, with the sanction of the council, prohibit by public notice or licence, or regulate the sale or exposure of sale, of any(animals or)articles in or on any public street or part thereof.''
19.Section 270-A of the 'Act', 1920 refers to 'Decision of disputes as to whether places are markets' and in this regard the Municipal Council shall make a reference to the State Government and the decision of the State Government on the question shall be final.
20.The Learned Counsel for the Fifth Respondent vehemently takes a stand that the 'Tender-cum-Auction' notice was issued only after passing a resolution from the Council of Kanyakumari Special Grade Town Panchayat as per Resolution Nos.106 and 108, dated 15.09.2017. Moreover, the income derived from the present tender, the Town Panchayat will provide amenities and health and sanitary facilities to the tourists. If temporary shops are not established in those areas in the Ayyappa Season, the private persons will encroach upon the area and put up temporary shops which will create nuisance and hardship to the tourists as well as the public. Therefore, regulations are being made imposing necessary conditions. Finally, it is the stand of the Fifth Respondent that the Writ Petitioner has approached this Court at the 11th Hour.
21.It is not in dispute that the Fifth Respondent/The Executive Officer of the Kanyakumari Special Grade Town Panchayat Office, Kanyakumari had addressed a reply, dated 25.10.2017 to the Petitioner and among other things, had mentioned that as usual, during the year 2016-2017, Car Parking Public Auction and when the same was conducted, the Petitioner's complaint, dated 21.10.2016 was received by the Office of the Town Panchayat and if shops are not finally auctioned, then some of the persons would encroach the aforesaid places and they will run the shops which would create the possibility for the arising of Law and Order problem. Moreover, the Panchayat would lose its 'Revenue' during Ayyappa Season and also a situation would arise with the basic facilities/amenities are not able to be provided to the tourists and the devotees. As such, the Petitioner was informed that the proper course would be to conduct the temporary shops auction like the preceding years.
22.The Learned Counsel for the Fifth Respondent points out before this Court that there are four Toilet Blocks which will be provided in respect of the present Ayyappa Season which will begin from 17.11.2017 to 20.1.2018 and three Battery Cars will be pressed into service for the pilgrims and other people to travel in the said areas which will also benefit to the age-old people and Four Sintex Tanks, each with the capacity of 1000 litres are being installed for the purpose of drinking water to be used by the tourists and Ayyappa devotees and for the past 20 years, at the relevant place, temporary shops are being erected only after the conduct of public auction. Since the Petitioner is only a Tourist Guide, there is no element of 'Public Interest' involved in the present Writ Petition. Therefore, on behalf of the Fifth Respondent, it is prayed that the Writ Petition filed by the Petitioner is to be dismissed, in the interest of justice.
23.On behalf of the Respondents 1 to 4, it is represented before this Court that the arguments projected by the Learned Counsel for the Fifth Respondent is adopted in entirety.
24.Considering the fact that the Fifth Respondent is conducting auction in regard to the erection of temporary shops at the relevant place in Kanyakumari and this Court taking note of the fact that the auction takes place on 9.11.2017 at about 10.00 a.m., and also the practice of conducting auction for erection of temporary shops is in practice/vogue for the past 20 years and also, this Court bearing in mind the totality of the facts and circumstances of the present case in a conspectus fashion, comes to an irresistible conclusion that the Petitioner's representation dated 10.10.2017 has been attended to by the Fifth Respondent through its Reply, dated 25.10.2017. Therefore, this Court finds that the Petitioner may not have any grievance in regard to the consideration of his representation.
25.In the up-short of the afore-said detailed discussions, this Court while permitting the Fifth Respondent to go ahead with the 'Auction' slated on 09.11.2017 at about 10.00 a.m., but at the same time directs the Fifth Respondent to take all earnestness and serious endeavour to provide all facilities to the Ayyappa Devotees and large section of the public and also to take all possible steps not to cause any inconvenience to other sections of the public during Ayyappa Season beginning from 17.11.2017 to 20.1.2018. Apart from the facilities provided by the Fifth Respondent by taking note of the need and welfare of the Tourists and other members of the public, if more steps are required to be taken by the District Administration in consultation with the Fifth Respondent, the concerned Respondents are free and at liberty to take such action as they deem it fit and proper based on the facts and circumstances, which float on the surface. The District Administration and other Respondents shall leave no stone left un-turned in deploying the requisite Police force, installing CC TV Cameras at vantage points etc., and to take necessary steps in regulating the crowd/traffic movement and to maintain Law and Order during Ayyappa Season period.
26.With the above said observation(s) and direction(s), the Writ Petition stands disposed of. Consequently, connected Miscellaneous Petition is closed. No costs.
To
1.The District Collector, at Nagercoil, Kanyakumari District.
2.The Divisional Engineer, National Highway, 75, Raman Pillai Street, Nagercoil, Kanyakumari District.
3.The Assistant Director of Town Panchayat, The District Collectorate Campus, Nagercoil, Kanyakumari District.
4.The Divisional Engineer, State Highways, P.W.D Compound, Nagercoil-1, Kanyakumari District.
5.The Executive Officer, Kanyakumari Special Grade Town Panchayat Office, Kanyakumari, Kanyakumari District.
.