2009 (7) TMI 1211 - SC - Indian Laws

Whether assuming that constructions of permanent structures would attract the provisions of sub-section (1) of Section 26, the same 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 Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002 )? Whether 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?

Summary

Issues Involved:
1. Interpretation and application of Section 26 of the Tamil Nadu Highways Act, 2001.
2. Validity of permissions granted for the erection of arches.
3. Applicability of GOMs No.32 vis-`a-vis the Tamil Nadu Highways Act, 2001.
4. Doctrine of public trust and public interest litigation.

Issue-wise Analysis:

1. Interpretation and Application of Section 26 of the Tamil Nadu Highways Act, 2001:
The core issue is the interpretation of Section 26, which prohibits unauthorized occupation or encroachment on any highway within the highway boundaries. The provision is couched in negative language, making it mandatory. Sub-section (2) of Section 26 provides an exception allowing temporary uses with the concurrence of the Collector and subject to conditions. The High Court opined that Section 26 does not apply to permanent structures, which should be governed by GOMs No.32. However, the Supreme Court disagreed, emphasizing that Section 26 is imperative in character and applies to the prevention of unauthorized occupation or encroachment.

2. Validity of Permissions Granted for the Erection of Arches:
The permissions for erecting arches were granted based on GOMs No.32, which predates the Tamil Nadu Highways Act, 2001. The High Court upheld these permissions, stating that the construction of arches is a permanent structure and thus falls outside the purview of Section 26. The Supreme Court, however, found this reasoning flawed, holding that the State, after the enactment of the 2001 Act, no longer had the jurisdiction to grant such permissions, which should be under the purview of the Highway authority.

3. Applicability of GOMs No.32 vis-`a-vis the Tamil Nadu Highways Act, 2001:
GOMs No.32 was issued before the Tamil Nadu Highways Act, 2001, and provided guidelines for the erection of statues and arches. The High Court held that GOMs No.32 was applicable for permanent structures like arches. The Supreme Court, however, ruled that with the enactment of the 2001 Act, GOMs No.32 must be considered repealed, and the State Government had no jurisdiction to pass orders based on it.

4. Doctrine of Public Trust and Public Interest Litigation:
The appellant argued that the doctrine of public trust should apply, preventing the State from granting permissions for private interests. The Supreme Court agreed, emphasizing that the State should act in public interest and not for private or political interests. The Court also noted that in public interest litigation, strict rules of pleadings are not necessary, and even if the petitioners are busy bodies, the Court can proceed suo motu.

Conclusion:
The Supreme Court set aside the High Court's judgment, holding that the permissions granted for the erection of arches were invalid under the Tamil Nadu Highways Act, 2001. The appeals were allowed with costs payable by the respondents, emphasizing the importance of public interest and the doctrine of public trust in such matters.