Farook Vs. Municipal Council, Perambalur & Ors.  INSC 1333 (31 July
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4972 OF
2009 (Arising out of SLP (C) No.9576 of 2005) A. Abdul Farook ... Appellant
Versus Municipal Council, Perambalur & Ors. ... Respondents WITH CIVIL
APPEAL NO. 4973 OF 2009 (Arising out of SLP (C) No.9577 of 2005)
Interpretation and/or application of Section 26 of the Tamil Nadu
Highways Act, 2001 (hereinafter referred to for the sake of brevity as `the
said Act') is in question in this appeal. It arises out of a judgment and order
2 dated 21.3.2005 passed by a Division Bench of the High Court of Judicature at
Madras in Writ Petition No.6820 of 2005 and Writ Appeal No.410 of 2005.
The basic fact involved in this matter is not in dispute.
about 13.2.1998 The Government of Tamil Nadu issued a Notification bearing GOMs
No.32 granting permission for installation of statutes and erection of arches.
In terms thereof, requisitions, seeking for permission to put up of arches and
the like, were submitted to the District Collector, who, on receipt thereof was
required to get reports from the Divisional Engineer of the State Highways,
District Superintendent of Police etc. On receipt of such reports and on being
satisfied therewith, the District Collector could make recommendations so as to
enable the Government to grant or refuse to grant the requisite permission.
Legislature of the State enacted the Tamil Nadu Highways Act, 2001 (Tamil Nadu
Act 34 of 2002 ) (hereinafter referred to for the sake of brevity as `the Act')
with a view to provide for declaration of certain highways to be the State
Highways. It came into force with effect from 1.12.2002.
exercise of its powers conferred upon the State Government under Section 3 of
the Act, it, on or about 16.12.2003, issued a Notification being GOMs No.250
declaring some of the roads as State Highways, Major District Roads and other
District Roads. The roads in question in this appeal are Thuraiyur-Perambalur
Road and Thuraimangalam-Bungalow Road.
been classified as Major District Roads. Both the roads were declared to be
highways belonging to the Government.
On or about
22.10.2004, one Mr. Ravichandran, President of Tamil Nadu Handloom and Textiles
Development Corporation (respondent herein) requisitioned the Perambalur
Municipality to issue a `No Objection Certificate' for the purpose of erecting
arches on the occasion of 57th Birthday Celebrations of the Chief Minister at
two places outside the boundary line of the abovementioned roads. On or about
23.10.2004, the Executive Officer, Perambalur Municipality issued a No
Objection Certificate to construct the arches as per the abovesaid requisition
on the condition that there would be no hindrance to the traffic.
about 24.11.2004, the Municipal Council vide a resolution dated 24.11.2004
granted its approval for grant of No Objection Certificate.
the requisition and the approval thereof were placed before the 4 District
Collector, who, in terms of the guidelines issued in GOMs No.32 called for
reports from the Divisional Engineer of Highways, Ariyalur and the District
Superintendent of Police. The Divisional Engineer, Highways on 20.12.2004 sent
a report to the District Collector stating that arches can be permitted to be
put up at the said two places and that putting up of the arches would not cause
any hindrance to the traffic being outside the boundary line of the roads. It
was also stated in the report that an undertaking was obtained from Mr.
Ravinchandran that in case of expansion of roads, he would remove the arches.
On or about 14.01.2005, the District Superintendent of Police also sent his
report recommending grant of permission for construction of arches.
receipt of both the reports, the District Collector forwarded a proposal to the
Secretary to the Government of Tamil Nadu, State Highways recommending for the
On or about
24.1.2005, the appellant - Ward Councillor of Perambalur Municipality filed a
writ petition being WP No.2503 of 2005 before the High Court of Madras praying,
inter alia, for issuance of a writ of certiorari quashing the abovesaid No
Objection Certificate. A learned Single Judge of the High Court dismissed the
said writ petition by its judgment and 5 order dated 14.2.2005 holding that the
proposed constructions do not fall within the National Highways limits. An
intra court appeal being WA No.410 of 2005 was preferred by the appellant on
about 22.2.2005, the Secretary to Government of Tamil Nadu, State Highways
Department, taking into consideration the recommendation made by the District
Collector and after satisfying himself that the guidelines stipulated in GOMs
No.32 have been complied with granted permission to construct the arches.
N.G. Karunakaran, claiming himself to be the Secretary of the District Consumer
Council, Perambalur, filed a writ petition being WP No.6820 of 2005 praying for
issuance of a writ of mandamus forbearing the respondents from putting up of
Division Bench of the High Court by reason of the impugned judgment dismissed
both the Writ Appeal No.410 of 2005 as well as the Writ Petition No.6820 of
The appellants are, thus, before us.
Assailing the judgment of the High Court, Mr. T.L.V. Iyer, learned
senior counsel appearing on behalf of the appellant, would urge that the 6 High
Court committed a serious error in holding that Section 26 of the Act does not
deal with a permanent structure and the same comes within the purview of GOMs
No.32. Sub-section (1) of Section 26 of the Act being clearly applicable, it
was contended, that no sanction could be granted by the State in terms of GOMs
No.32 or otherwise. It was furthermore urged that, in a case of this nature,
doctrine of public trust would be applicable.
Learned counsel for the Municipal Corporation has drawn our
attention to a resolution dated 10.6.2008 passed by it in terms whereof the
lands in question are sought to be acquired.
Learned counsel appearing on behalf of the National Highways
contended that a project of making the State Highway or four lane road had been
taken up and the same has been completed.
Learned counsel for the State Highways adopted the submission of
the learned counsel.
Mr. C.S. Vaidhyanathan, learned senior counsel appearing on behalf
of Respondent Nos.1 and 6, on the other hand, would contend:
Assuming that constructions of permanent structures would attract the
provisions of sub-section (1) of Section 26, the same 7 deserves strict
construction and as permission had been granted by the State, the constructions
made by way of arches cannot be construed to be an encroachment within the
meaning of the provisions of the said Act.
ii. If a
literal meaning to sub-section (1) of Section 26 is assigned, no over-bridge
can also be constructed for the pedestrians nor any signboard can be put up for
the benefit of the public. The constructions having been made far away from the
tar road, the impugned judgment should be upheld.
Appellant having not challenged the validity of the order passed by the State
Government granting permission to put up the arches in the writ petition, this
Court may not interfere therewith in exercise of its jurisdiction under Article
136 of the Constitution of India.
appellant No.2 has wrongly described himself as a member of the District
Consumer Council as the said Council has been wound up long back. v. The
appellants being belonging to the rival political parties, the writ petitions
have been filed mala fide.
The preamble of the said Act reads as under:
Act to provide for the declaration of certain highways to be State highways,
restriction of ribbon development along such highways, prevention and removal
of encroachment thereon, construction maintenance and development of highways,
and levy of betterment charges and for matters connected therewith or
the said legislation seeks to regulate the roads in the State other than the
National highways. It was enacted with a view to fix building and control lines
of such roads, to declare such roads as State Highways, Major District Roads
and Village Roads, to prevent any encroachment on such State Highways, to
acquire required lands for formation and development of the State Highways. It
was also considered necessary that the State Highways Authorities are vested
with statutory powers to undertake such measures in the public interest.
2(8) of the said Act defines `encroachment' to mean :
"encroachment" means any unauthorized occupation of any highway or
Land where the construction of a highway is undertaken or proposed to be
undertaken or part thereof, and includes any unauthorised-- (a) erection of a
building or any other structure, balcony, porch or projection on or over or
overhanging the highways or part thereof; or 9 (b) occupation of such highway
of such land, after the expiry of the period for which permission was granted
for any temporary use under this Act; or (c) excavation of embankments of any
sort made or extended on such highways or part thereof or underneath such
highway or part thereof."
defines `highway' as under:
"highway" means any road, way or land which is declared to be a
highway under section 3 and includes-- (a) all land appurtenant thereto,
whether demarcated or not;
slope, berm, burrow pits, foot paths, pavement, whether surfaced or unsurfaced;
bridges, culverts, causeways, carriageways or other structures built on or
across such road or way;
foot-way attached to any road, public bridge or cause way;
drains attached to any such street, public bridge or cause way and the land,
whether covered or not by any pavement, varanda or other structure, which lies
on either side of the roadway up to the boundaries of the adjacent property,
whether that property is private or property belonging to the Central
Government or any State Government ; and (f) all fences, trees, posts and
boundaries, hectometer and kilometer stones and other 10 highway accessories
and materials stacked on such road or public bridge or causeway, but does not
include a National Highway declared as such by or under the National Highways
`Highway Authority' is defined under Section 2(13) of the said Act to mean the
officer appointed under sub-section (2) of section 5 thereof. Section 2(14)
defines `highway boundary' to mean the highways boundary as may be fixed under
2(18) defines `middle of a highway' to mean :
"middle of a highway" means the point half way between the boundaries
of the highway in relation to any highway for the improvement of which plans
have been prepared by the Highways authority, the middle of the highway as
proposed to be improved in accordance with the plans or the point half way
between the boundaries of the highway"
of Section 2(19), an `occupier' includes :
any person who for the time being is paying or is liable to pay to the owner
rent or any portion of the rent of the premises in respect of which such rent
is paid or is payable; or (b) a owner living in or otherwise using his
premises; or 11 (c) a rent free tenant; or (d) a licensee in occupation of any
premises; or (e) any person who is liable to pay to the owner damages for the
use and occupation of any premises."
empowers the State Government to declare any road, way or line to be a highway
and classify it as any of the following :
major district road;
Other district road; or (iv) A village road.
recommendations made by the state Highway Authorities.
III of the Act provides for the restriction of ribbon development.
Highway authority of any division is empowered to issue a notification in
relation to any highway or any area in that division where the construction or
development of highway is undertaken or proposed to be undertaken, fixing:
the highway boundary, building line, or control line; or (b) the highway
boundary and the building line; and (c) the building line and the control
Section 9 provides for restriction on building.
of the said Act provides for prevention of unauthorized occupation of and
encroachment on a Highway and removal of encroachment in the following terms :
Prevention of unauthorized occupation of highway.--(1) No person shall occupy
or encroach on any highway within the highway boundaries.
Notwithstanding anything contained in sub- section (1), the Highways authority
may, with the concurrence of the Collector and with due regard to the safety
and convenience of traffic and subject to such conditions, and on payment of
such rent or other charges as may be prescribed, grant permission, of a
temporary nature, to any person-- (a) to make any temporary use of any highway
in front of any building owned or occupied by him or make a temporary structure
overhanging the highway; or (b) to put up a temporary owning or tent, pandal or
other similar erection or a temporary stall or scaffolding on any highway; or
(c) to deposit or cause to be deposited building materials, goods for sale or
other articles on any highway for a specified period; or (d) to make a
temporary excavation on any highway for carrying out any repairs or
improvements to building on lands adjoining such highway:
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.
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.
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.
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.
permission granted under sub-section (2) shall be in such form and subject to such
conditions as may be prescribed."
49 of the said Act provides for a penalty, stating 14 "49. Unauthorised
occupation of highway.-- Whoever-- (a) occupies or makes any encroachment on
any highway in contravention of the provisions of section 26: or (b) Fails to
comply with the notice served on him under clause (ii) of sub-section (2) of
section 28, shall on conviction, be punishable-- (i) for the first offence with
fine which may extend to two hundred rupees;
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
Sub-section (1) of section 26 having been couched in negative
language must be construed to be imperative in character. The mandatory nature
of the said provision is also evident from the penal provisions contained in
Section 49 of the Act.
Court, however, in its impugned judgment, upon taking into consideration the
provisions of the Act as also the Rules framed thereunder, opined:
"51. However, in the instant case, neither permission is sought for either
for putting up a structure of temporary nature in any highway or overhanging the
highway nor permission is sought for a particular period under Form `A' or any
rate has been fixed under Rule 8. In other words, there are no provisions under
the Act or the Rules framed under the Act, to deal with statues or arches,
which are to be installed or put up in the highways, as a permanent structure.
52. As a
matter of fact, the petitioner N.G. Karunakaran, in W.P. No.6820 of 2005,
himself, in his prayer, would seek for a mandamus, forbearing the respondents
from permitting/putting up of permanent arches at the four road junction of
Perambalur and the three road junction of Thuraimangalam. As such, it is
nobody's case that the putting up of arches in the said two placed is either of
a temporary nature or to make any temporary use of any highway or make a
temporary structure overhanging the highway."
the construction of arches sought to be put up is of a permanent nature, we are
of the view that G.O.Ms. No.32, Highways Department, dated 13.02.1998, alone
would be applicable, as it would deal with statutes and arches
Court, however, noticed that permission had been granted to put up arches at
both the places, giving the specific measurement, allowing for putting up
middle pillars in the middle of the roads finding that although putting up of
arches would not prevent the free flow of traffic but putting up of middle
pillars in both the arches would certainly cover the middle space of tar road
portion in which event there may not be free flow of traffic to 16 pass or
repass. It view of the aforementioned finding, it issued, inter alia, the
following direction :
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."
Court summed up its judgment as under :
The prayers sought for in W.P. No.6820 of 2005 and w.A. No.410 of 2005 are not
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.
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.
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.
Government is directed to allow the arches to be put up of both the places
without middle pillars, by giving sufficient strength to the either side
pillars, to have a grip over the arches, 17 overhanging the highways, so that
the public use the entire portion of the tar road, to pass and repass."
We, with respect, are not in a position to persuade ourselves to
agree with the opinion of the Hon'ble High Court.
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.
provisions of Section 26 with a view to prevent unauthorized occupation of
highway or encroachment thereof would, however, apply to third parties and not
to the Highway authorities. The power to grant permission for erecting any arch
or any other constructions strictly lies with the Highway authority.
State, after coming into force of the said Act, is denuded of its power in the
matter of grant of any permission. The High Court, in our opinion, thus,
committed a manifest error in holding that the State would exercise its
jurisdiction of in terms of GOMs No.32.
Mr. Vaidyanathan would contend that no encroachment has been
caused having regard to the fact that the width of the road being 14 meters 18
and the recommendations having been given to construct the arches as mentioned
in the sketch map, i.e. 9.25 meters away from the Taar Salai on both the sides
and the height of the same should not be less than 6.60 meters to be supported
by a pillar, the same would not come within the purview of the term
`encroachment' as defined in the said Act.
in its order contained in GOMs No.A6/13173/2004 noticed that both the arches
are to be maintained by Perambalur District Kuzhagam.
furthermore noticed that the respondent himself has given an undertaking that
if any hindrance is caused to the concerned Department during the course of the
widening of the road, he shall be responsible for the removal thereof.
We would assume that having regard to the definition of
encroachment as contained in Section 2(8) of the Act, any construction made
with permission would not come within the purview thereof. We would also assume
that the provisions of Section 2(8), Section 8 and Section 26 of the Act are
required to be construed harmoniously. Notice may also be taken of the fact
that the State of Tamil Nadu had granted permission for erection of such arches
throughout the State. Such permissions, inter alia, are being 19 granted for
construction of arches in honour of its leaders or God or for depicting the name
of the place.
Before us, the details of such arches and/or the photographs
thereof have also been produced. We, however, fail to understand as to why the
State shall grant permission to erect such arches at the instance of a private
party. The State, being the principal protector of the rights of its citizens,
keeping in view the doctrine of public trust as adumbrated by this Court in a
large number of decisions, including M.C. Mehta v. Kamal Nath & Ors.
SCC 388]; M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu & Ors.
SCC 464] and Intellectuals Forum, Tirupathi v. State of A.p. & Ors. [2006
(2) SCALE 494], should not have granted such permission. In any event, with the
coming into force of the said Act, GOMs 32 must be held to have been repealed.
The State Government, therefore, had no jurisdiction to pass the order impugned
in the writ application.
In a public interest litigation of this nature, it is not
necessary for the Court to abide by the strict rules of pleadings and even if
it is found that the petitioners are busy bodies, the courts while discharging
them, could proceed to deal with the public interest litigation suo motu.
Nirmal Singh Kahlon v. State of Punjab & Ors. [(2009) 1 SCC 441], this
Court held :
High Court while entertaining the writ petition formed a prima facie opinion as
regards the systematic commission of fraud. While dismissing the writ petition
filed by the selected candidates, it initiated a suo motu public interest
litigation. It was entitled to do so. The nature of jurisdiction exercised by
the High Court, as is well known, in a private interest litigation and in a
public interest litigation is different. Whereas in the latter it is
inquisitorial in nature, in the former it is adversarial. In a public interest
litigation, the court need not strictly follow the ordinary procedure. It may
not only appoint committees but also issue directions upon the State from time
to time. (See Indian Bank v. Godhara Nagrik Coop.
Society Ltd. and Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar)."
Indian Bank v. Godhara Nagrik Cooperative Credit Society Ltd. & Anr.
[(2008) 12 SCC 541] and Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar &
Ors. [(2008) 9 SCC 54]}
When questioned that even assuming that encroachment is not made
on the surface of the building line but may be in the air in view of well
settled principle of law that he who possesses the land possesses also having
regard to the maxim cedificatum solo solo cedi;. Our attention was drawn by Mr.
Vaidyanathan to the following passage from Broom's Legal Maxim:
"It may be noticed, in conclusion, that the maxim under consideration does
not apply in favour of local authorities, in whom streets are vested by virtue
of the Public Health Act, 1875, Section 149, or any similar enactment. Such
enactments vest in the authority such property only as is necessary for the
control, protection and maintenance of the streets as highways for public use,
and confer no general proprietary rights in the air above or the ground below
the streets. [Tunbridge wells v. Baird [(1896) AC 434]."
English Law with regard to the limited right vested in the local authorities
under the Public Health Act, 1875 is not applicable in India. The authorities
acquired the land in terms of the provisions of the Act. The roads vest in the
authorities in terms of the provisions of the Land Acquisition Act or the
provisions of the State Highways Act or similar other statutes free from all
encumbrances. It is just not a case where a limited right is vested by the
State as a Local Authority.
there cannot be any doubt or dispute whatsoever that the authorities in the
interest of general public and pedestrians and others, in particular, may grant
permission to construct such buildings even if it be permanent in character as
it may seem fit or carry out such construction itself as it may seem necessary.
What is, however, important is public interest in carrying out such
construction and not any private interest or 22 interest of a political party.
The doctrine of good governance, in our opinion, requires the Government to
rise above their political interest and act only in public interest and for
welfare of its people.
For the reasons aforementioned, the impugned judgment cannot be
sustained. It is set aside accordingly. The appeals are allowed with costs
payable by the Respondent Nos. 1 and 6. Counsel's fee assessed at Rs.50,000/-
(Rupees Fifty thousand only)
.............................J. [S.B. Sinha]
.............................J. [Deepak Verma]
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