Full Judgment Text
REPORTABLE
IN THE 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)
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. 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
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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.
3. The basic fact involved in this matter is not in dispute.
On or 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.
The 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.
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In 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.
They have 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
th
Certificate’ for the purpose of erecting arches on the occasion of 57
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.
On or about 24.11.2004, the Municipal Council vide a resolution
dated 24.11.2004 granted its approval for grant of No Objection Certificate.
Thereafter the requisition and the approval thereof were placed before the
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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.
On 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 required permission.
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
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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 18.2.2005.
On or 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.
One Mr. 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 permanent arches.
The 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 2005.
4. The appellants are, thus, before us.
5. 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
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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.
6. 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.
7. 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.
8. Learned counsel for the State Highways adopted the submission of the
learned counsel.
9. Mr. C.S. Vaidhyanathan, learned senior counsel appearing on behalf
of Respondent Nos.1 and 6, on the other hand, would contend:
i) Assuming that constructions of permanent structures would
attract the provisions of sub-section (1) of Section 26, the same
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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.
iii. 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.
iv. The 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.
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10. The preamble of the said Act reads as under:
“An 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 incidental thereto.”
Indisputably, 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.
Section 2(8) of the said Act defines ‘encroachment’ to mean :
(8) “encroachment” means any unauthorised
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
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(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.”
Section 2(12) defines ‘highway’ as under:
“(12) “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;
(b) the slope, berm, burrow pits, foot paths,
pavement, whether surfaced or unsurfaced;
(c) all bridges, culverts, causeways,
carriageways or other structures built on or
across such road or way;
(d) the foot-way attached to any road, public
bridge or cause way;
(e) the 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
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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 Act,
1956.
The term ‘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 section 8.
Section 2(18) defines ‘middle of a highway’ to mean :
(18) “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”
In terms of Section 2(19), an ‘occupier’ includes :
“(a) 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
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(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.”
Section 3 empowers the State Government to declare any road, way or
line to be a highway and classify it as any of the following :
(i) A State Highway;
(ii) A major district road;
(iii) Other district road; or
(iv) A village road.
on the recommendations made by the state Highway Authorities.
Chapter III of the Act provides for the restriction of ribbon development.
The 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:
“(a) 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 line.”
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Section 9 provides for restriction on building.
Chapter V of the said Act provides for prevention of
unauthorized occupation of and encroachment on a Highway and
removal of encroachment in the following terms :
“ 26. Prevention of unauthorized 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; 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:
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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 upto which and
the purpose for which the occupation of the
highway is authorised and the exact portion of the
highway so permitted to be occupied, and shall
also be accompanied by a plan or sketch of that
portion of the highway. A copy of such
permission shall be communicated to the Collector
for the purpose of record.
(4) The person in whose favour such permission
has been given shall produce the permit for
inspection whenever called upon to do so by the
Highways authority, or any officer authorised by
it in that behalf and shall, at the end of the period
specified in the permit, vacate the portion of the
highway occupied by him, after restoring it to the
same state as it originally stood before the
occupation by him.
(5) The Highways authority shall maintain a
complete record of all such permissions granted,
and shall also cause an inspection to be made in
every case at the expiration of the period upto
which such occupation has been permitted, to
ensure that the portion of the highway has actually
been vacated.
(6) The permission granted under sub-section
(2) shall be in such form and subject to such
conditions as may be prescribed.”
Section 49 of the said Act provides for a penalty, stating
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“ 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;
and
(ii) for any subsequent offence in relation
to the same encroachment, with fine
which may extend to five hundred
rupees plus a further fine not
exceeding fifty rupees per day on
which such occupation of the highway
or encroachment continues.”
11. 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.
The High Court, however, in its impugned judgment, upon taking into
consideration the provisions of the Act as also the Rules framed thereunder,
opined:
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“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.”
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 statutes and arches exclusively.”
The High 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
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pass or repass. It view of the aforementioned finding, it issued, inter alia,
the following direction :
“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.”
The High Court summed up its judgment as under :
“(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 of both the places without
middle pillars, by giving sufficient strength to the
either side pillars, to have a grip over the arches,
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overhanging the highways, so that the public use
the entire portion of the tar road, to pass and
repass.”
12. We, with respect, are not in a position to persuade ourselves to agree
with the opinion of the Hon’ble High Court.
13. Sub-section (1) of Section 26, as noticed hereinbefore, is mandatory in
character. Sub-section (2) of Section 26 is an exception to Sub-section (1)
of Section 26.
The provisions of Section 26 with a view to prevent 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.
The State, after coming into force of the said Act, is denuded of its
power in the matter of grant of any permission. The High Court, in our
opinion, thus, committed a manifest error in holding that the State would
exercise its jurisdiction of in terms of GOMs No.32.
14. Mr. Vaidyanathan would contend that no encroachment has been
caused having regard to the fact that the width of the road being 14 meters
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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.
The State in its order contained in GOMs No.A6/13173/2004 noticed
that both the arches are to be maintained by Perambalur District Kuzhagam.
It 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.
15. 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
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granted for construction of arches in honour of its leaders or God or for
depicting the name of the place.
16. 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.
[(1997) 1 SCC 388]; M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu & Ors.
[(1999) 6 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.
17. 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.
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In Nirmal Singh Kahlon v. State of Punjab & Ors. [(2009) 1 SCC
441], this Court held :
“The 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.
Credit Society Ltd. and Raju Ramsing Vasave v.
Mahesh Deorao Bhivapurkar ).”
{See also 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]}
18. 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:
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“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].”
The 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.
However, 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
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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.
19. 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]
New Delhi;
July 31 , 2009