Madras High Court
Mr. N.G. Karunakaran vs The Chairman, National Highways ... on 21 March, 2005
Equivalent citations: AIR2005MAD248, (2005)2MLJ446, AIR 2005 MADRAS 248, (2005) 2 MAD LJ 446 (2005) WRITLR 333, (2005) WRITLR 333
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam, C. Nagappan
ORDER M. Karpagavinayagam, J.
1. In commemoration of the 57th Birthday Celebrations of the Chief Minister of Tamil Nadu, one M. Ravichandran, President of Tamil Nadu Handloom and Textiles Development Corporation, Perambalur, who happens to be the District Secretary of AIADMK Party of Perambalur District, applied for permission for construction of two arches, one at Perambalur Junction and the other at Turaimangalam Junction and the same was granted by the authorities concerned.
2. Opposing the move for the said construction, one Mr. N.G. Karunakaran has filed this W.P. No. 6820 of 2005 as a Public Interest Litigation before this Division Bench and one Mr. A. Abdul Farook, a Ward Councillor of Perambalur Municipality, had earlier filed W.P. No. 2503 of 200 5 before a learned single Judge of this Court. The said Writ Petition filed by Abdul Farook was dismissed and as against the order passed by the learned single Judge, he filed the present Writ Appeal No. 410 of 2005 before this Division Bench.
3. Both the matters, namely, W.P. No. 6820 of 2005 and W.A. No. 410 of 2005 are heard together, as the issue involved therein is common.
4. The prayer sought for by N.G. Karunakaran, who approached this Court by way of Public Interest Litigation, claiming himself as a social worker and the Secretary of the District Consumer Council, is for a mandamus forbearing the respondents, namely, Officials of the Government, Municipality and Ravichandran, President of Tamil Nadu Handloom and Textiles Development Corporation, Perambalur, who obtained No Objection Certificate from the Municipality, from permitting/putting up of permanent arches at the four road junction of Perambalur and the three road junction of Thuraimangalam, in violation of the provisions of Sections 180 and 180-A of Tamil Nadu District Municipalities Act,1920.
5. The prayer sought for by Abdul Farook, a Ward Councillor of Perambalur Municipality, in W.P. No. 2503 of 2005, which is the subject matter of Writ Appeal No. 410 of 2005, is for issuance of a writ of certiorari, calling for the records pertaining to the order of the Executive Officer, Perambalur Municipality Grade III, Perambalur, one of the respondents, in Na. Ka. No. 1977 of 2004, dated 23.10.2004, giving No Objection Certificate for construction of two arches at two different places, and to quash the same.
6. Since the prayers in both the Writ Petition and the Writ Appeal devolve upon a common issue, the following common order is passed.
7. The submissions made by Mr. R. Viduthalai, learned counsel for the petitioner in Writ Petition, a Public Interest Litigation, and Mr. T.R. Rajagopalan, learned Senior Counsel appearing for the appellant in Writ Appeal, would be summarised as under :
"The places, namely, roads in question are vested with the Municipality of Perambalur. The usage of such main roads is governed by Tamil Nadu District Municipalities Act, 1920. While granting No Objection Certificate by the Municipality to construct permanent structures across the public roads, the Executive Officer, has not followed the mandatory provisions of Sections 180,180-A,181 and 182 of the Act. The Municipality has no authority to grant permission. District Collector alone is the appropriate authority to grant such a permission, after considering the various factors affecting the public, namely, inconvenience, safety, traffic movements, the scope of future expansion of roads etc. In this case, the said procedure has not been followed. Tamil Nadu Highways Act prohibits any permanent structures from being put up over public roads. Admittedly, the procedures, as contemplated under The Tamil Nadu Highways Act have not been followed. Permission has not been granted by the competent authority, as provided under Section 5 (2) of the Act. The Government issued G.O. Ms. No. 31, dated 22.02.2005, granting permission for putting up of arches in two places, without referring to the provisions of the Act and, hence, the G.O. per se is invalid. G.O. Ms. No. 32, dated 13.02.1998, providing for guidelines for permission to be granted for the structures to be put up over the public roads or highways is no more valid, after introduction of The Tamil Nadu Highways Act,2001."
8. The gist of the submissions, in reply, made by Mr. A.L. Somayaji, learned Additional Advocate General, appearing for respondents 2 to 5 in Writ Petition and respondents 1 to 4 in Writ Appeal, and Mr. Vijay Narayan, learned Senior Counsel, appearing for sixth respondent in Writ Petition and fifth respondent in Writ Appeal, is as follows :
"(a) The Executive Officer, Perambalur Municipality, one of the respondents, received an application filed by M. Ravichandran, for permission for construction of arches at two places, in commemoration of the 57th Birthday Celebrations of the Chief Minister of Tamil Nadu and gave No Objection Certificate to construct arches. Apart from that, the Municipal Council Meeting also passed a resolution, recommending permission for construction of arches. Then, the said application was forwarded to the District Collector.
(b) The District Collector called for reports from the Divisional Engineer concerned of the State Highways Department and also the District Superintendent of Police and both of them recommended for permission and gave their opinion that the proposed locations for construction of arches would not cause hindrance to the public traffic. On the basis of the said reports, the District Collector forwarded a proposal with his recommendation to the Secretary to Government of Tamil Nadu, one of the respondents. Thereafter, the Secretary to Government issued orders vide G.O. Ms. No. 31, dated 22.02.2005, granting such permission.
(c) The guidelines contained in G.O. Ms. No. 32, dated 13.02.1998 regarding construction of arches over the public roads have been strictly followed. Since the roads in question are vested with the State Highways Department vide G.O. Ms. No. 250, Highways (NH2), dated 16.12.2003 , as Major District Roads, the Divisional Engineer and the District Collector recommended for permission to the Government and, accordingly, the Secretary, State Highways Department, on behalf of the Government, granted permission.
(d) Since the said roads are vested with the State Highways, the provisions of Sections of the Tamil Nadu District Municipalities Act would not apply to the facts of the case on hand.
(e) There is no obstruction for public with regard to free flow of traffic and access to the road. Permission has been granted only as per G.O. Ms. No. 32, dated 13.02.1998. As there is no provision in The Tamil Nadu Highways Act regarding pererection of permanent structures like arches, the Government has invoked the powers under G.O. Ms. No. 32, dated 13.02.1998, which G.O. is still in force.
(f) Even assuming that the authority competent to grant permission is the Chief Engineer or the Divisional Engineer of the said Division as per Section 5 (2) of the Act, in this case, such a permission for construction of arches has been granted by the Government, namely, Secretary to Government, who is the higher authority to the Divisional Engineer, on the basis of recommendation given by the Divisional Engineer and, as such, this may be construed that the relevant provisions of the Act have also been complied with.
(g) The Writ Petition is mala fide. Since the petitioner belongs to the rival political party and is not able to get any relief from the other forums, he has resorted to file this Writ Petition, styling it as a Public Interest Litigation.
(h) Further, the challenge in this Writ Petition is made only to the No Objection Certificate, issued by the Executive Officer of Perambalur Municipality. Admittedly, there is no challenge in the Writ Petition as to the validity of the orders of the District Collector, which was based upon the Divisional Engineer's recommendation, or the Secretary to Government, granting permission for erection of arches. Hence, both the Writ Petition and Writ Appeal are liable to be dismissed."
9. Mr. V.T. Gopalan, learned Additional Solicitor General, appearing for first respondent in Writ Petition and sixth respondent in Writ Appeal, namely, Chairman, National Highways Authority of India, would submit that though the proposed construction of arches do not come within the limits of National Highways, there are some future proposals for expansion of National Highways in the area and, as such, any construction made will be subject to the same.
10. The main questions that arise for consideration in this case are, whether M. Ravichandran, President of Tamil Nadu Handloom and Textiles Development Corporation, Perambalur, can be permitted to put up the arches at two junctions in the busy roads, which may cause hindrance to the free flow of traffic, and, whether such permission is legally valid ?
11. Before delving into the said questions, let us now refer to the relevant facts, involving the chronological events :
(i) On 13.02.1998, the Government of Tamil Nadu issued a Notification in G.O. Ms. No. 32, setting the guidelines formulated by it and giving suitable directions to various Departments of the Government like Highways, State Highways, District Collectors, District Superintendents of Police etc., regarding the procedure for granting permission for installation of statues and erection of arches. As per the said Notification, requisitions, seeking for permission regarding putting up of arches and the like, shall be submitted to the District Collector. On receipt of the same, the District Collector has to get reports from the Divisional Engineer of the State Highways, District Superintendent of Police etc. Thereafter, he, if deems fit, may send a proposal for permission with his recommendation to the Government and the same shall be considered by the Government and permission can be granted.
(ii) On 01.12.2002, the Government of Tamil Nadu, in order to provide for declaration of certain highways to be State Highways, introduced "The Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002)".
(iii) Under Section 3 of the said Act, the State Government may, by a Notification, declare any road, way or land to be highway and classify it as any one of the following, namely, (i) State Highway; (ii) Major District Road; (iii) Other District Road; or (iv) A Village Road.
(iv) On 16.12.2003, the State Government issued a Notification in G.O. Ms. No. 250, Highways (NH2), in exercise of the powers conferred by Section 3 of The Tamil Nadu Highways Act,2001, declaring the roads specified in the Annexure to be State Highways, Major District Roads and Other District Roads, as indicated therein.
(v) Through the said Notification, the two roads in question, namely, Thuraiyur-Perambalur Road and Thuraimangalam-Bungalow Road, for which permission has been granted to construct arches, have been classified as Major District Roads as item Nos. 1 and 11 respectively. By this Notification, these roads were declared to be highways, belonging to the Government.
(vi) On 22.10.2004, Mr. Ravichandran, President of Tamil Nadu Handloom and Textiles Development Corporation, sent a requisition to Perambalur Municipality, for issuance of No Objection Certificate, to put up arches, to mark the 57th Birthday Celebrations of the Chief Minister, at two places, referred to above, within the limits of Perambalur Municipality; pursuant to which, the Executive Officer, Perambalur Municipality, on 23.10.2004, issued No Objection Certificate, to construct those two arches at the respective places, on condition that they shall be put up without hindrance to the traffic. For approval, the said No Objection Certificate was placed before the Council Meeting on 24.11.2004. Accordingly, a resolution was passed by the Municipal Council on the same day, approving the No Objection Certificate for granting permission.
(vii) Then, the requisition made by Ravichandran, dated 22.10.2004, and No Objection Certificate, dated 23.10.2004, were placed before the District Collector, who, in turn, called for reports from the Divisional Engineer of Highways, Ariyalur, and the District Superintendent of Police, as per the guidelines stipulated in G.O. Ms. No. 32, dated 13.02.1998. The Divisional Engineer, Highways, after enquiry and inspection, sent a report on 20.12.2004 that arches can be permitted to be put up in the said two places, as the putting up of arches in those places would not cause any hindrance to the public traffic. He also mentioned in the report that he obtained an undertaking from the said Ravichandran, that in the event of expansion of roads in the said places, he would remove those arches. The District Collector received a report from the District Superintendent of Police on 14.01.2005, recommending permission for construction of arches, as it would not affect the traffic flow.
(viii) On the basis of the recommendations given by the Divisional Engineer, State Highways, and the District Superintendent of Police and also the No Objection Certificate issued by the Municipality, the District Collector sent a proposal to the Secretary to Government of Tamil Nadu, State Highways, recommending for the said permission, on 15.01.2005.
(ix) The Secretary to Government of Tamil Nadu, State Highways Department, after considering the proposal of recommendation by the District Collector and after satisfying himself that the guidelines stipulated in G.O. Ms. No. 32, dated 13.02.1998, have been complied with, granted permission to the said Ravichandran, through G.O. Ms. No. 31, dated 22.02.2005, to construct the arches at the two places, referred to above.
(x) In the meantime, one Abdul Farook, IV Ward Councillor of Perambalur Municipality, filed W.P. No. 2503 of 2005 on 24.01.2005, for issuance of a writ of certiorari, to quash the No Objection Certificate, dated 23.10.2004, issued by the Executive Officer of Perambalur Municipality, on the ground that the Executive Officer of Perambalur Municipality is not the competent authority and the permission should not be granted, since the roads in question may be required by the State Highways Authority or the National Highways Authority, to widen the highway roads.
(xi) After hearing the learned counsel for the parties, the learned single Judge of this Court, by an order dated 14.02.2005, dismissed the said Writ Petition, holding that the proposed constructions do not fall within the National Highways limits, as submitted by the Additional Solicitor General, appearing for the Central Government, and that the permission has been granted not only by the Executive Officer of Perambalur Municipality, but also by the other competent authorities as well. The said order of the learned single Judge is under appeal before this Court in W.A. No. 410 of 2005.
(xii) As indicated above, the District Collector passed the order on 15.01.2005 itself, recommending the proposal and sent the same to the Secretary to Highways Department, Government of Tamil Nadu. The Secretary to Highways Department, on 22.02.2005, passed the order, on the basis of the said recommendation, granting permission, vide G.O. Ms. No. 31.
(xiii) Thereafter, the present Writ Petition No. 6820 of 2005 has been filed by one N.G. Karunakaran, claiming himself as the Secretary of the District Consumer Council, Perambalur, as a pro bono publico, seeking for a mandamus, forbearing the officials of the State Government as well as the other respondents, including Ravichandran, from permitting/putting up of permanent arches, at the two places mentioned above."
12. Regarding the maintainability of Public Interest Litigation in W.P. No. 6820 of 2005, it is strenuously contended by the learned counsel for the respondents that this Public Interest Litigation is not actually in the interest of public, but the same is mala fide and since the petitioner belongs to a rival political party and is unable to get relief from other forums through some other persons, he has resorted to file this Writ Petition, styling it as a Public Interest Litigation.
13. Mr. Vijay Narayan, learned Senior Counsel, appearing for Mr. Ravichandran, sixth respondent in Writ Petition and fifth respondent in Writ Appeal, would cite the decisions, namely, ( JANATA DAL v. H.S. CHOWDHARY AND ORS.) and ( DATTARAJ NATHUJI THAWARE v. STATE OF MAHARASHTRA AND ORS.). The crux of the observations made therein is as follows :
"A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. A writ petitioner who comes to the court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective. The court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well as to enrich themselves. Often, they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs."
14. On the other hand, Mr. R. Viduthalai, learned counsel for the writ petitioner, would cite (FRIENDS COLONY DEVELOPMENT COMMITTEE v. STATE OF ORISSA AND ORS.), in order to show that the petitioner being a social worker and Secretary of the District Consumer Council has got every right to bring to the notice of this Court about the illegal and unauthorised building activities, causing inconvenience to the public and he has not come with any political motive. The relevant observation in the said decision is as follows :
"The High Court, if it feels that illegal/unauthorised building activities in Cuttack are so rampant as to be noticed judicially, may suo motu register a public interest litigation and commence monitoring the same by issuing directions as to curb such tendency and fixing liability and accountability."
15. Mr. Viduthalai would also cite (S.P. GUPTA v. UNION OF INDIA), wherein it is observed as under : "Yet again, whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury."
16. If we go through all the judgments cited above and the records placed before this Court, it is clear that it cannot be contended that the petitioner/appellant has come with some profit motive or political motive, in order to get cheap publicity. On the other hand, the petitioner is admittedly a District Consumer Council Member and has been invited for the Government functions, in the capacity of Secretary of District Consumer Council by the Government itself, as seen from one of the invitations produced before this Court. Under those circumstances, we have no hesitation to entertain this Public Interest Litigation as the public injury, as, in our view, the alleged illegal construction activities in public roads have been brought to the notice of this Court.
17. Now, let us go into the other submissions. The main thrust of the argument of Mr. R. Viduthalai, learned counsel appearing for the writ petitioner, is that permission has been granted in violation of Sections 180 and 180-A of Tamil Nadu District Municipalities Act,1920, and without following the procedures contemplated therein.
18. The main contention made by Mr. T.R. Rajagopalan, learned Senior Counsel appearing for the appellant in W.A. No. 410 of 2005 and the learned counsel appearing for the petitioner in W.P. No. 6820 of 2005 is, that the Executive Officer of the Municipality is not the competent authority to issue No Objection Certificate and since permission has been granted by the officials not under The Tamil Nadu Highways Act,2001, the said permission becomes invalid.
19. Both the counsel would strenuously contend that permission granted by the District Collector and approved by the Secretary to Government is only on the basis of G.O. Ms. No. 32, dated 13.02.1998, and as The Tamil Nadu Highways Act prohibits any permanent structures over public roads, G.O. Ms. No. 32, dated 13.02.1998, is no more valid, after introduction of The Tamil Nadu Highways Act,2001, and, as such, the permission granted by the Government through the Notification issued vide G.O. Ms. No. 31, dated 22.02.2005, without referring to the provisions of Tamil Nadu Highways Act,2001, per se is invalid.
20. We have carefully considered the submissions made by the learned counsel for the parties and also perused the records.
21. The prayer in W.P. No. 2503 of 2005, filed by Mr. A. Abdul Farook, which is the subject matter of challenge in W.A. No. 410 of 2005, is, to quash the order passed by the Executive Officer of Perambalur Municipality in Na. Ka. No. 1977 of 2004, dated 23.10.2004, granting No Objection Certificate for putting up of arches. The prayer in W.P. No. 6820 of 2005, filed by N.G. Karunakaran as a Public Interest Litigation, is, for a mandamus, forbearing the officials/respondents from permitting/putting up of permanent arches at the two places, namely, four road junction of Perambalur and three road junction of Thuraimangalam.
22. At the outset, it shall be stated, that both the prayers would not deal with the challenge to the orders passed by the District Collector, Perambalur District, dated 15.01.2005, recommending for permission for construction of arches and the consequent order, dated 22.02 .2005, passed by the Secretary to Government, Highways Department.
23. Further, it is noticed that the plea made by the petitioners in both the Writ Petitions has been changed stage by stage and, ultimately, a fresh plea is raised before this Court, contending that permission ought to have been granted only by the Highways Authority and not by the authorities, who now granted permission.
24. For instance, if we look at the affidavit filed in W.P. No. 6820 of 2005 by N.G. Karunakaran, it is stated that the Executive Officer of Perambalur Municipality, fourth respondent in the said Writ Petition, has no authority to grant permission to put up arches and the District Collector alone is the appropriate authority to grant such a permission, after considering the various factors affecting the public, namely, inconvenience, safety, traffic movements, the scope of future expansion of the said roads etc. The relevant portions of the plea raised by the petitioner are as under :
"(c) The 4th respondent has no authority to grant permission to put arch in the Thuraimangalam three road, which is within the limits of the 5th respondent panchayat.
(h) The 4th respondent has failed to see that the District Collector is the appropriate authority to grant such permission after considering the various factors affecting the public, namely, inconvenience, safety, traffic movements and the scope of future expansion of the said roads etc. In the instant case, no such procedure has been followed."
25. The above portions would indicate that the original stand taken by the petitioner Mr. N.G. Karunakaran is that the arches are being put up only on the strength of the No Objection Certificate, issued by the fourth respondent Executive Officer, Perambalur Municipality, and not by the District Collector, who alone is the appropriate authority to grant such a permission.
26. Similarly, the stand taken by Mr. Abdul Farook in W.P. No. 2503 of 2005, a Ward Councillor of Perambalur Municipality, is that since the order, issuing No Objection Certificate by the Executive Officer, Perambalur Municipality, dated 23.10.2004, was passed without any resolution by the Municipality, it is without jurisdiction and the resolution passed by the Municipality, on the basis of the said order, was not passed earlier, but only later and, therefore, the said resolution is also unsustainable. The relevant portions of the grounds in the petition are as follows :
"a) The orders passed by the second respondent dated 23.10.2004 granting No Objection Certificate is absolutely without jurisdiction, since the Executive Authority of a Municipality is empowered to carry into effect the resolution of the Council and such other duties and exercise specifically imposed or conferred on the Authority in terms of Section 13A of the Tamil Nadu District Municipalities Act,1920. Therefore, in the absence of any resolution, the 2nd respondent has no jurisdiction to issue No Objection Certificate.
b) The resolution passed by the first respondent in Resolution No. 51 /6 dated 25.11.2004 based on an illegal order of the 2nd respondent is unsustainable in the eye of law."
27. The above grounds (a) and (b) would indicate that challenge is made only to the No Objection Certificate issued by the Executive Officer, dated 23.10.2004, and the resolution passed by the Municipal Council on 24.11.2004.
28. After dismissal of the Writ Petition No. 2503 of 2005 by the learned single Judge on 14.02.2005, Abdul Farook, a Ward Councillor, raised fresh pleas in the Writ Appeal that the Executive Officer of Perambalur Municipality has simply issued No Objection Certificate, without looking at the drawing, structural designs and the sketch of the proposed arches; the No Objection Certificate issued by the subordinate of the Chief Engineer, National Highways Department, is without jurisdiction and that M. Ravichandran, President of Tamil Nadu Handloom and Textiles Development Corporation, who has been permitted to erect arches, has been putting up arches, contrary to the conditions imposed in the Municipal Council's Resolution, dated 24.11.2004.
29. A perusal of these grounds would clearly indicate that the plea made by the petitioner in Writ Petition No. 2503 of 2005 before the learned single Judge has been slightly modified and a fresh plea has been raised before this Court in W.A. No. 410 of 2005 that the No Objection Certificate was issued without application of mind and the construction of arches is being done contrary to the conditions imposed in the Municipal Council's Resolution, dated 24.11.2004.
30. As stated above, none of the prayers in W.P. No. 2503 of 2005, W.P. No. 6820 of 2005 and W.A. No. 410 of 2005 would refer to the order of the Secretary to Government, Highways Department, nor would challenge the same. On the other hand, the specific plea taken by N.G. Karunakaran in W.P. No. 6820 of 2005 is that the District Collector alone is the authority to grant permission, which, according to him, has not been done.
31. The plea taken by A. Abdul Farook in Writ Appeal No. 410 of 2005 is that No Objection Certificate is issued only by the Executive Officer of Perambalur Municipality and no permission has been granted either by the State Highways Department or the National Highways Department. Conversely, the records produced by the counsel for the respondents would clearly show that Ravichandran applied for permission both to the Municipality and the District Collector, for construction of arches in two places, and the District Collector, after getting reports from the Divisional Engineer of Highways and the District Superintendent of Police, dated 20.12.2004 and 14.01.2005 respectively, sent recommendation to the Secretary to Government of Tamil Nadu, Highways Department, on 15.01.2005, after following the guidelines stipulated in G.O. Ms. No. 32, dated 13.02.1998, and the Secretary to Government, Highways Department, on a perusal of the opinion of the Divisional Engineer of the Highways Department, the report of the District Superintendent of Police and the District Collector, passed the order on 22 .02.2005, granting permission, vide G.O. Ms. No. 31.
32. Admittedly, as stated above, there is no prayer, challenging the order of the District Collector or the validity of G.O. Ms. No. 31, dated 22.02.2005, issued by the Secretary to Government.
33. In the absence of challenge to those two orders, it may not be proper for the counsel for the petitioner and the appellant, to request for a direction to forbear the respondents from granting permission.
34. As stated supra, in this case, the District Collector has recommended for permission for construction of arches not only on the basis of No Objection Certificate issued by the Executive Officer of Perambalur Municipality, but also on the basis of the recommendations made by the Divisional Engineer, Highways Department, and the District Superintendent of Police. Moreover, the District Collector, instead of himself passing an order, granting permission as per the guidelines stipulated in G.O. Ms. No. 32, dated 13.02.1998, forwarded the proposal, with his recommendation, to the Secretary to Government of Tamil Nadu, Highways Department, who is the higher authority for the Highways. Ultimately, the Higher Authority of State Highways, perused the records and granted permission, by the order dated 22.02.2005.
35. Hence, the prayers sought for in W.P. Nos. 2503 and 6820 of 2005 and W.A. No. 410 of 2005 are not sustainable, in view of the orders passed by the District Collector, dated 15.01.2005, and the Secretary to Government of Tamil Nadu, Highways Department, dated 22.02.2005.
36. However, it is appropriate to deal with the other pleas, made on behalf of the petitioner and the appellant, as permitted by this Court. The main argument advanced by Mr. R. Viduthalai, learned counsel for the petitioner, is, that the roads in question are vested with the Municipality, Perambalur; the usage of such main roads is governed by the Tamil Nadu District Municipalities Act,1920 and that the Municipality, through its Executive Officer and the Municipal Council, has not followed the mandatory provisions of Sections 180,180-A, 181 and 182 of the Act, while granting No Objection Certificate, which is the basis for the subsequent orders passed by the officials.
37. On the other hand, it is contended by Mr. A.L. Somayaji, learned Additional Advocate General, and Mr. Vijay Narayan, learned Senior Counsel, appearing for Mr. Ravichandran, that the provisions of The Tamil Nadu District Municipalities Act would not apply to the facts of the case, as the rules relating to permission for construction of arches are governed by G.O. Ms. No. 32, dated 13.02.1998.
38. Let us now deal with this aspect. It is true that the permission was sought for from the Executive Officer of Perambalur Municipality by the said Ravichandran through the letter dated 22.10.2004, and, consequently, No Objection Certificate was issued by the Executive Officer, which was approved by the Municipal Council's Resolution, dated 24.11.2004. There is no dispute in the fact, that if the roads in question exclusively belong to Municipality, then the Municipal Council and the Executive Officer have to necessarily follow the provisions under Sections 180, 180-A,181 and 182 of The Tamil Nadu District Municipalities Act.
39. Section 180 deals with Prohibition against obstructions in or over streets; under which, 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 thereinafter provided.
40. Section 180-A deals with Public Streets; under which, 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.
41. Section 181 deals with Prohibition and regulation of doors, ground-floor, windows and bars opening outwards; under which, no door, gate, bar or ground-floor window shall without a licence from the executive authority be hung or placed so as to open outwards upon any street.
42. Section 182 deals with Removal of encroachments; under which, the 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.
43. A reading of the above provisions would indicate that the said provisions would deal with the streets, vested with the Municipality. But, in this case, the roads in question cannot be said to be vested with the Municipality. As a matter of fact, no material has been placed by the learned counsel for the petitioner/appellant that the places, namely, roads in question belong to the Municipality, so as to attract the relevant provisions of The Tamil Nadu District Municipalities Act. On the other hand, on behalf of the respondents, a copy of G.O. Ms. No. 250, Highways, dated 16.12.2003, has been placed before this Court, to indicate that the roads in question are vested with the State Highways Department.
44. A perusal of G.O. Ms. No. 250, Highways, dated 16.12.2003, would show that in exercise of the powers conferred by Section 3 of the Tamil Nadu Highways Act,2001, the Governor of Tamil Nadu, on the recommendation made by the State Highways Authority, declared the roads specified in the Annexure to be Highways and classified them as State Highways, Major District Roads and Other District Roads, as indicated therein. As per the Annexure, the two roads in question have been classified in Schedule-B as Major District Roads as item Nos. 1 and 11, which is one of the categories of Highways, belonging to State Government.
45. If we look at Section 3 of the Tamil Nadu Highways Act, it is clear that the Government has got powers through a Notification, to declare any road, way or land to be highway and classify it into four categories, including the category of Major District Road. It is also indicated in the proviso to Section 3 that where such a road, way or land whether in whole or in part is owned by any local authority, such a notification shall be issued with the concurrence of that local authority by a resolution passed by it in this behalf.
46. In the instant case, the roads in question are declared as highways by the State Government under G.O. Ms. No. 250, dated 16.12.2003, which exclusively belong to the State Government and they are neither vested with the Municipality nor declared as National Highways.
47. As noted above, Notification has been issued on 16.12.2003, declaring the two road junctions as Major District Roads, as these highways exclusively belong to the State Government. If the portions of the said roads are vested with the local authority, naturally, such a Notification should have been issued with the concurrence of the local authority. There is nothing to indicate that the local authority objected to the said Notification G.O. Ms. No. 250, dated 16.12.2003, on the ground that the portion of the land vested with Municipality has been included in the said Notification. Further, as stated, the said Notification has never been challenged either by the local authority or any other person that the lands vested with the local authority have been wrongly declared by the State Government as Highways, without any concurrence of the local authority. In the absence of any challenge to the said Notification G.O. Ms. No. 250, dated 16.12.2003, declaring these two roads as Highways, the petitioner/appellant cannot complain of violation of the provisions of The Tamil Nadu District Municipalities Act, which would not apply to highways. Therefore, this ground, in our view, would fail.
48. In the light of the stand taken by the learned Senior Counsel for the respondents that The District Municipalities Act would not apply to the facts of this case, learned counsel for the petitioner/ appellant would make a fresh plea, which is as follows :
"When the roads in question are declared as highways under Section 3 of the Tamil Nadu Highways Act, then, the competent authority to grant permission for putting up of construction over the highways under Section 5 (2) is the Chief Engineer or the Divisional Engineer of that Division and that under Section 26 of the Act, no person shall be allowed to occupy or encroach on any land on any highway and the Highways Authority alone is empowered to give permission for putting up a construction of temporary nature, 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. Further, the moment The Tamil Nadu Highways Act,2001, was introduced on 01.12.2002, G.O. Ms. No. 3 2, dated 13.02.1998 became invalid, as the Act would prevail over the administrative directions, given in G.O. Ms. No. 32 and, as such, the permission granted by following G.O. Ms. No. 32, dated 13.02.1998, without following the procedures under the Act, is not valid."
49. Though this argument looks attractive at the first blush, a thorough probe into the said aspect would clearly reveal that the said contention is untenable and the procedure followed under the guidelines in G.O. Ms. No. 32, Highways Department, dated 13.02.1998, in granting permission is perfectly justified, for the following reasons:
(i) G.O. Ms. No. 32, Highways Department, dated 13.02.1998 is issued for installation of statues and arches in the places, declared as highways, belonging to the State Government. As per the guidelines contained in the said G.O., an application for installation of arches must be sent to the District Collector and the District Collector has to get the opinion of the Divisional Engineer/ Superintending Engineer of Highways and the District Superintendent of Police and then send the application with his recommendation to the Secretary to Government, Highways Department. Thereafter, the Government has to pass orders, after considering the recommendation made by the District Collector. As such, this G.O. would exclusively deal with the installation of statues, arches etc.
(ii) The Tamil Nadu Highways Act, 2001, was brought into force on 0 1.12.2002, to provide for declaration of highways to be State Highways and prevention and removal of encroachment thereon, construction, maintenance and development of highways and levy of betterment charges.
(iii) As per Section 2 (12) of the said Act, "Highway" means, any road, way or land, which is declared to be a highway under Section 3. "Highways Authority", as provided under Section 2 (13), means, the Officer, appointed under sub-section (2) of Section 5.
(iv) Section 5 provides that the Government may, by notification, appoint an officer of the Highways Department of the Government not below the rank of the Chief Engineer, as the State Highways Authority, and the Divisional Engineer, Highways Department of the Government in-charge of each division, shall be the Highways Authority for that division.
(v) Section 26 of the Act reads as follows : "Prevention of unauthorised occupation of highway:-
(1) No person shall occupy or encroach on any highway within the highway boundaries. (2) Notwithstanding anything contained in sub-section (1), the Highways Authority may, with the concurrence of the Collector and with due regard to the safety and convenience of traffic and subject to such conditions, and on payment of such rent or other charges as may be prescribed, grant permission, of a temporary nature, to any person-
(a) to make any temporary use of any highway in front of any building owned or occupied by him or make a temporary structure overhanging the highway;
(b).....
(c).....
(d).....
Provided that no such permission shall be deemed to be valid beyond a period of one year, unless it is expressly renewed by the Highways Authority.
(3) The permission granted under sub-section (2) shall clearly specify the date up to 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." (vi) Thus, under Section 26 (3), permission granted under subsection (2) shall clearly specify the date up to 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 and a copy of such permission shall be communicated to the Collector for the purpose of record.
(vii) Under Rule 6 of The Tamil Nadu Highways Rules,2003, framed under the Act, the permission granted by the Highways Authority under sub-section (2) of section 26 shall be in Form 'A', subject to the conditions contained in Rule 7. One of the conditions is, the applicant shall pay rent for occupation of the encroachment on a highway, within the highway boundaries, at the rates indicated in the Schedule.
(viii) Under Rule 8, 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.
(ix) The Table in the Schedule would relate to temporary encroachment in front of a building or for a temporary structure overhanging a highway.
(x) Form 'A' permission under Section 26 would indicate the period for which permission is granted shall be mentioned and also the area for temporary occupation of highway land.
50. A reading of the above provisions under the Act and the Rules framed under the Act and Form 'A' and the Schedule would indicate that permission granted under Section 26 would relate only to the putting up a structure of temporary nature either in any highway or overhanging the highway for a specified period on the basis of the rates fixed.
51. However, in the instant case, neither permission is sought for either for putting up a structure of temporary nature in any highway or overhanging the highway nor permission is sought for a particular period under Form 'A' or any rate has been fixed under Rule 8. In other words, there are no provisions under the Act or the Rules framed under the Act, to deal with statues or arches, which are to be installed or put up in the highways, as a permanent structure.
52. As a matter of fact, the petitioner N.G. Karunakaran, in W.P. No. 6820 of 2005, himself, in his prayer, would seek for a mandamus, forbearing the respondents from permitting/putting up of permanent arches at the four road junction of Perambalur and the three road junction of Thuraimangalam. As such, it is nobody's case that the putting up of arches in the said two places is either of a temporary nature or to make any temporary use of any highway or make a temporary structure overhanging the highway.
53. Since the construction of arches sought to be put up is of a permanent nature, we are of the view that G.O. Ms. No. 32, Highways Department, dated 13.02.1998, alone would be applicable, as it would deal with statues and arches exclusively.
54. According to the learned Additional Advocate General, even assuming that the Tamil Nadu Highways Act,2001, will be applicable, inasmuch as the Divisional Engineer of the said Division, who is the competent authority under Section 5 (2) of the Act, has given his opinion that permission could be granted and, on that basis, the Secretary to Government, Highways Department, has granted permission, it must be taken that permission was granted under the Act.
55. We need not go into this aspect, in the light of our considered opinion that G.O. Ms. No. 32, dated 13.02.1998, alone would be applicable to the case on hand. Hence, we are to conclude that the permission granted by the Secretary to Government, on the basis of the recommendation of the District Collector, is perfectly valid.
56. However, it is noticed that permission has been granted to put up arches at both the places, giving the specific measurement, allowing for putting up middle pillars in the middle of the roads. Though it cannot be stated that the putting up of arches will prevent the free flow of traffic, as contended by the learned counsel for the petitioner/appellant, the putting up of middle pillars in both the arches would certainly cover the middle space of tar road portion, in which event, there may not be free flow of traffic, to pass or repass. In our view, the middle pillars in two roads may prevent the free flow of traffic and, as such, the request made by Mr. R. Viduthalai, learned counsel for the petitioner, at least to remove the pillars being constructed in the middle of the road so that the members of the public will have a right to pass or repass through the entire tar road portion, may be considered. In this connection, it would be relevant to quote the observation made by this Court in (K. SUDARSAN AND ORS. v. THE COMMISSIONER, CORPORATION OF MADRAS AND ORS.), which reads as under :
"The highway is a passage over which members of the public are entitled to pass and repass....The right of the public to pass and repass extends over the whole width of the highway or the street, in other words, over every inch of the street. A member of the public cannot be compelled to confine himself to a part of the street at the choice of another...."
57. Therefore, we direct the Government to allow the arches to be put up at both the places without middle pillars, by giving sufficient strength to the either side pillars, to have a grip over the arches, overhanging the highways.
To sum up :
(1) The prayers sought for in W.P. No. 6820 of 2005 and W.A. No. 410 of 2005 are not sustainable.
(2) In view of G.O. Ms. No. 250, Highways (NH2), dated 16.12.2003, declaring the roads in question as Highways belonging to the State Government, the provisions of Sections 180,180-A,181 and 182 of The Tamil Nadu District Municipalities Act,1920, are not applicable.
(3) The Tamil Nadu Highways Act, 2001, is not applicable with reference to the permission for installation of arches, in view of G.O. Ms. No. 32, Highways Department, dated 13.02.1998, which would exclusively govern the same.
(4) Permission, granted by the Secretary to Government of Tamil Nadu, Highways Department, on the basis of the recommendation of the Divisional Engineer of the said Division and the District Collector, is perfectly valid.
(5) State Government is directed to allow the arches to be put up at both the places without middle pillars, by giving sufficient strength to the either side pillars, to have a grip over the arches, overhanging the highways, so that the public use the entire portion of the tar road, to pass and repass.
58. With the above direction, Writ Petition and Writ Appeal are dismissed. No costs. Also, the connected W.P.M.P. No. 7490 of 2005 and W.A.M.P. No. 723 of 2005 are dismissed.