Holding

Section 26 of the Tamil Nadu Highways Act, 2001 is a mandatory provision that exclusively vests the power to permit any construction on a highway with the Highway Authority; the State’s permission under G.O. Ms. 32 is ultra vires and therefore invalid.

Summary

The Tamil Nadu Government issued G.O. Ms. No.32 (1998) permitting the erection of statues and arches on highways. After the Tamil Nadu Highways Act, 2001 came into force, the State, through its Secretary, granted permission to install permanent arches on two major district roads. The High Court held that because the arches were permanent, G.O. Ms. No.32, not Section 26 of the Act, governed the matter and directed the State to allow the arches. The Supreme Court reversed this, holding that Section 26 is mandatory, applies to any unauthorized occupation of a highway, and that only the Highway Authority may grant permission for such constructions; the State’s permission under G.O. Ms.32 was therefore invalid. Consequently, the High Court’s order was set aside and the appeals were allowed with costs.

Issues considered

The scope and mandatory nature of Section 26 of the Tamil Nadu Highways Act, 2001 vis‑à‑vis G.O. Ms. 32.
Whether permanent arches constitute ‘encroachment’ under the Act.
Who has the statutory authority to grant permission for erecting structures on highways.
Applicability of the public‑trust doctrine to State‑granted permissions.

Legislation cited

Land Acquisition Act
National Highways Act, 1956
Tamil Nadu Highways Act, 2001s. 2(12), s. 2(13), s. 2(14), s. 2(18), s. 2(19), s. 26, s. 2(8), s. 3, s. 49, s. 9

Subjects

Tamil Nadu Highways ActSection 26encroachmentpublic trust doctrinehighway authorityG.O. Ms.32permanent structureswrit of mandamuspublic interest litigation

Judgment

-- ~ ~
[2009] 11 S.C.R. 727

A. ABDUL FAROOK A
v.
MUNICIPAL COUNCIL, PERAMBALUR & ORS.
(Civil Appeal No. 4972 of 2009)
JULY 31, 2009
B
[S.B. SINHA AND DEEPAK VERMA, JJ.]

'4
Tamil Nadu Highways Act, 2001 - s. 26 - Prevention of

- unauthorized occupation of Highway - GOMs No.32 by State
Government granting permission for installation of statues c
and erection of arches - Permission to President of State
" Development Corporation to put arches on Highway by State
Government - Challenge to - High Court h.olding that
construction of arches being of permanent nature, GOMs
No.32 is applicable and nots. 26 - Direction issued to State D
.... Government to allow arches to be put up - Sustainability of -
• Held: Not sustainable - s. 26 is mandatory in nature - Power
to grant permission for erecting any arch or other
constructions strictly lies with Highway authority - State
Government had no jurisdiction to grant any permission - E
·",
State being the principal protector of rights of its citizens,
/ should not have granted such permission in view of doctrine
~
of public trust - Thus, order of High Court is set aside.

Government of Tamil Nadu issued a Notification
GOMs No.32 granting permission for installation of F
'{

statues and erection of arches. Another GOMs No.250
was issued declaring some of the roads as State
Highways, Major .District Roads and District Roads.
Respondent-President of State Development Corporation
requisitioned the Municipality to issue a No Objection G

-
Certificate for erecting arches outside the boundary line
>
.
of Major District Road. District Collector recommended
for the grant of the requisite permission. Secretary to
727 H
728 SUPREME COURT REPORTS [2009] 11 S.C.R.

A Government of Tamil Nadu, State Highways Department
granted permission to construct the arches. Appellant-
Secretary of the District Consumer Council filed writ
• • -
petition for issuance of a wrjt of mandamus forbearing the
respondents from putting up of permanent arches.
B Division Bench of the High Court held that the
construction of arches being of permanent nature, GOMs
No.32 is applicable and not s. 26 of the Tamil Nadu
Highways Act, 2001 and directed the State Government

c
to allow arches to be put up. Hence the present appeals.

Allowing the appeals, the Court
..
HELD: 1. Section 26 of the Tamil Nadu Highways Act,
2001 provides for prevention of unauthorized occupation
of highway. Sub-section (1) of section 26 having been
D 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. Sub-section (2) of Section 26 is
an exception to Sub-section (1) of Section 26. The
E 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
F 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. [Paras 11and13) [741-
G-H; 744-A-B]

2.1. High Court upon taking into consideration the
G provisions of the Act as also the Rules framed
thereunder, opined that since the construction of arches
sought to be put up is of a permanent nature, G.O. Ms.
No.32 Highways Department, dated 13.2.1998, alone
-
would be applicable, as it would deal with and arches
H exclusively. However, High Court, noticed that
... A. ABDUL FAROOK v. MUNICIPAL COUNCIL, 729

- .,j
PERAMBALUR & ORS.

permission had been· granted to put up arches at both A
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 B
middle space of tar road portion in which event there may
not be free flow of traffic to pass or repass. In view of the
said finding, it directed 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 c
pillars, to have a grip over the arches, overhanging the
highways. The opinion of the High Court cannot be
accepted. Thus, High Court committed a manifest error
in holding that the State would exercise its jurisdiction of

- ...
in terms of GOMs No.32. [Paras 11 and 13) [741-G-H; 742-
E-H; 743-A; 744-8-C]

2.2. It is assumed that having regard to the definition
D

of encroachment as contained in section 2(8) of the Act,
any construction made with permission would not come
within the purview thereof. Also the provisions of section E
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 granted for F
construction of arches in honour of its leaders or God or
for depicting the name of the place. [Para 15) [744-F-H;
745-A]

3.1. The details of arches and/or the photographs
G
thereof have been produced. It cannot be understood as
--,>
> to why the State shall grant permission to erect such
arches at the instan~e of a private party. The State, being
the principal protector of the rights of its citizens, keeping
in view the doctrine of public trust should not have
H
730 SUPREME COURT REPORTS [2009] 11 S.C.R.

k
A 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. [Para 16] [745-A-D]
B
M. C. Mehta v. Kamal Nath and Ors. (1997) 1 SCC 388;
M.J. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors. (1999)
6 SCC 464; Intellectuals Forum, Tirupathi v. State of A.p. and
Ors. 2006 (2) SCALE 494, referred to.
c 3.2. 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
D motu. [Para 17] [7 45-D-E]

Nirmal Singh Kah/on v. State of Punjab and Ors. (2009) • -4

1 SCC 441; Indian Bank v. Godhara Nagrik Cooperative
Credit Society Ltd. and Anr. (2008) 12 SCC 541; Raju
Ramsing Vasave v. Mahesh Deorao Bhivapurkar and Ors.
E
(2008) 9 sec 54, referred to.

3.3. 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
F 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
G 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
H permanent in character as it may seem fit or carry out
A. ABDUL FAROOK v. MUNICIPAL COUNCIL, 731
PERAMBALUR & ORS .
... J
such construction itself as it may seem necessary. What A
is, however, important is public interest in carrying out
such construction and not any private interest or interest
of a political party. The doctrine of good governance
requires the Government to rise above their political
interest and act only in public interest and for welfare of 8
its people. Therefore, the impugned judgment cannot be
sustained and is set aside. [Paras 18 and 19] [746-F-H;
747-A-C]

Brooms Legal Maxim, referred to.
c
Case Law Reference :
(1997) 1 sec 388 Referred to. Para 16
(1999) 6 sec 464 Referred to. Para 16
D
(2006) 2 SCALE 494 Referred to. Para 16
(2009) 1 sec 441 Referred to. Para 17
(2008) 12 sec 541 Referred to. Para 17
(2008) 9 sec ~4 Referred to. Para 17 E

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4972 of 2009.

From the Judgment & Order dated 21.03.2005 of the High
Court of Judicature at Madras in Writ Appeal No. 410 of 2005. F

WITH

C.A. No. 4973 of 2009.

T.L.V. Iyer, C.S. Vaidhyanathan, K.V. Viswhwanathan, V. G
Kanakraj, V. Krishna Mruthy, Indira G., Jagdishvaran, John
• f
Mathew, V. Mohana, Raghunath, Abhishek Kaushik V.G.
Pragasam, S.J. Aristotle, Prabhu Ramasubramanian, T. Harish
Kumar, P. Prasanta, V. Vasudevan, G. Ramakrishna Prasad,
S. Thananjayan, for the appearing parties. H
732 SUPREME COURT REPORTS [2009] 11 S.C.R.
,
lo
A The Judgment of the Court was delivered by

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
B sake of brevity as 'the said Act') is in question 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 Petltion No.6820 of 2005 and Writ Appeal No.410 of
2005.
c
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
D 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
E 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
F 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
G 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-
H
A. A8DUL FAROOK v. MUNICIPAL COUNCIL, 733
PERAMBALUR & ORS. [S.B. SINHA, J.]
.... ;i
Bungalow Road. They have been classified as Major District A
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
B
(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
c
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 D
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 District Collector, who,
in terms of the guidelines issued in GOMs No.32 called for
reports from the Divisional Engineer of Highways, Ariyalur and E
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 F
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.
G
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.
H
_,
734 SUPREME COURT REPORTS [2009] 11 S.C.R.

A
~
..
On or about 24.1.2005, the appellant - Ward Councillor
of Perambalur Municipi:ility 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
B 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.
c 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
D permission to construct the arches.
;I

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
E 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.
F
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,
G 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
H
A. ABDUL FAROOK v. MUNICIPAL COUNCIL, 735
PERAMBALUR & ORS. [S.B. SINHA, J.]

• was furthermore urged that, in a case of this nature, doctrine A
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
8
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. C

8. Learned counsel for the State Highways adopted the ·
submission of the learned counsel.

9. Mr. C;S. Vaidhyanathan, learned senior counsel
0
appearing on behalf of Respondent Nos.1 and 6, on the other
hand, would conten1:

(i) Assuming that constructions of permanent
structures would attract the provisions of sub-
section (1) of Section 26, the same deserves strict 6
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.
F
(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 G
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 H
736 SUPREME COURT REPORTS [2009) 11 S.C.R.

A 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.
B
(v) The appellants being belonging to the rival political
parties,.the writ petitions have been filed mala fide.

10. The ,preamble of the said Act reads as under:
c . "An Act,to prpvide for the declaration of certain highways
to be: State highways, restriction of ribbon development
along, such highways, prevention and removal of
microachmeht thereon, construction maintenance and
development of highways, and levy of betterment charges
D 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
E 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
F statutory powers to undertake such measures in the public
interest.

Section 2(8) of the said Act defines 'encroachment' to
mean:

G (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-

H (a) erection of a building or any other structure, balcony,
A. ABDUL FAROOK v. MUNICIPAL COUNCIL, . 737
PERAMBALUR & ORS. [S.B. SINHA, J.]
porch or projection on or over or overhanging the A
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 8
(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: c
"(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
n~; D
(b) the slope, berm, burrow pits, foot paths, pavement,
whether surfaced or unsurfaced;

(c) all bridges, culverts, causeways, carriageways or E
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 F
or cause way and the land, whether covered or n'ot
by any pavement, varanda or other structure, which
lies on either side of the roadway up to the
boundaries of the adjacent property, whetherthcit
property is private or property belonging to the G
Central Government or any State Government ; and

(f) all fences, trees, posts and boundaries, hectometer
·- f and kilometer stones and other highway
accessories and materials stacked on such road
or public bridge or causeway, H
·I
738 SUPREME COURT REPORTS [2009] 11 S.C.R.

A 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
8
boundary' to mean the highways boundary as may be fixed
under section 8.

Section 2(18) defines 'middle of a highway' to mean :

c (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
0 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
E 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
F
(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
G
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
H following:
A. ABDUL FAROOK v. MUNICIPAL COUNCIL, 739
PERAMBALUR & ORS. [S.B. SINHA, J.]
<-
" (i) A State Highway; A

(ii) A major district road;

(iii) Other district road; or

(iv) A village road. B

on the recommendations made by the state Highway
Authorities. Chapter Ill 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
c
development of highway is undertaken or proposed to be
undertaken, fixing:

"(a) the highway boundary, building line, or control line;
or D
~-
(b) the highway boundary and the building line; and
.\
(c) the building line and the control line."

· Section 9 provides for restriction on building.· E
-;,.
Chapter of the said Act provides for prevention of
unauthorized occupation of and encroachment o~ a Highway
and removal of encroachment in the,following terms :
... "26. Prevention of unauthorized occupation of highway., F
(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 G
Collector and with due regard to the safety and
:'-
convenience of traffic and subject to such con?itions, and
""" on payment of such rent or other charges as may be
prescribed, grant permission, of a temporary nature, to any
person- H
740 SUPREME COURT REPORTS [2009) 11 S.C.R.

A (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, panda! or
other similar erection or a temporary stall or
B 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
c l(d) to make a temporary excavation on any highway for
I
carrying out any repairs or improvements to building
on lands adjoining such highway:

Provided that no such permission shall be deemed
D 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
E 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.
F (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
G the highway occupied by him, after restoring it to the same
state as it origin.ally stood before the occupation by him.

(5) The Highways authority shall maintain a complete
record of all such permissions granted, and shall also
-<:
-
H cause an inspection to be made in every case at the
A ABDUL FAROOK v. MUNICIPAL COUNCIL, 741
PERAMBALUR & ORS. [S.B. SINHA, J.]

- ~ expiration of the period upto which such occupation has A
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 8
prescribed."

Section 49 of the said Act provides for a penalty, stating

"'
. "49. Unauthorised occupation of highway-Whoever-

(a)
c
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 D
_,, conviction, be punishable-
~

(i) for the first offence with fine which may.
extend to two hundred rupees; and
E·
(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
F
"' 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 G
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:
H
742 SUPREME COURT REPORTS [2009] 11 S.C.R.

A "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,
8 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,
c 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
D 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."

E 53. Since the construction of arches sought to be put up
is of a permanent nature, we are of the view that G.0.Ms.
No.32, Highways Department, dated 13.02.1998, alone
would be applicable, as it would deal with statutes and
arches exclusively."
F 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
G 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 pass or repass. It view of the aforementioned ..
finding, it issued, inter alia, the following direction :

H "57. Therefore, we direct the Government to allow the
A ABDUL FAROOK v. MUNICIPAL COUNCIL, 743
PERAMBALUR & ORS. [S.B. SINHA, J.]
,I. arches to be put up at both the places without middle A
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 B
w.A. No.410 of 2005 are not sustainable.

(2) In view of G.O.Ms. No.250, Highways (NH2), dated
·li 16.12.2003, declaring the roads in question as Highways
belonging to the State Government, the provisions of c
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 D
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
E

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 F
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. G
tf
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.
H
744 SUPREME COURT REPORTS (2009] 11 S.C.R.

A 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.
B
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.
c
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 sketch map,
D 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/
E 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 I=
hindrance is caused to the concerned Department during the
course of the widening of the road, he shall be responsible for
F 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
G 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 granted for construction of arches in honour
H
A ABDUL FAROOK v. MUNICIPAL COUNCIL, 745
PERAMBALUR & ORS. [S.B. SINHA, J.]
)
of its leaders or God or for depicting the name of the place. A
~
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, B
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.
Rad hey Sh yam Sahu & Ors. [( 1999) 6 SCC 464] and
Intellectuals Forum, Tirupathi v. State of A.p. & Ors. [2006 (2)
c
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. D

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 E
public interest litigation suo motu.

In Nirmal Singh Kah/on v. State of Punjab & Ors. ((2009)
1 SCC 441], this Court held :

"The High Court while entertaining the writ petition formed F
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 G

- :>
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 H
746 SUPREME COURT REPORTS [2009] 11 S.C.R.

A 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
8
Credit Society Ltd. & Anr. [(2008) 12 SCC 541] and Raju
Ramsing Vasave v. Mahesh Deorao Bhivapurkar & Ors.
[(2008) 9 sec 54]}

18. When questioned that even assuming that
C 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
D 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
E
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
F 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
G 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.
.. -
H
A. ABDUL FAROOK v. MUNICIPAL COUNCIL, 747
PERAMBALUR & ORS. [S.B. SINHA, J.]
)
However, there cannot be any doubt or dispute whatsoever A
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 B
in carrying out such construction and not any private interest or
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. c
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) D

N.J. Appeals allowed.