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TMI Blog2009 (7) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in this appeal. It arises out of a judgment and order 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 fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 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 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed mala fide. 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 ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 (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. Section 9 provides for restriction on buildi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 excepti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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