TaxTMI 
TaxTMI 
2009 (7) TMI 1211
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.... 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. 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 O....
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....o.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 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 attentio....
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....o 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 (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, pa....
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....sion 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 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 th....
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....ot 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: "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 roa....
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....ing 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 and the recommendations having been given to construct the arches as mentioned in the sketc....
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....igation 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 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....