IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 24.01.2008 CORAM THE HONOURABLE MR. JUSTICE S.J. MUKHOPADHAYA AND THE HONOURABLE MR. JUSTICE M. VENUGOPAL W.A. NO.708 OF 2007 AND W.P. NOS. 47678 OF 2006 & 17061 OF 2007 1. M. Kaliyamoorthy 2. V. Chidambaram 3. V. Ganesan 4. Amsavalli 5. N. Srinivasan 6. R. Kannaiyan 7. Murugaiya Thevar 8. S. Venkatachalam ... Appellants in W.A. No.708/2007 and Petitioners in W.P.No.17061 of 2007 P. Lenin Thevar ... Petitioner in W.P. No.17678 of 2006 - Vs - R. Krishnamoorthy ... 1st respondent in W.A. No.708/2007 and 4th respondent in W.P. No.17061 of 2007 Uma Maheswari ... 2nd respondent in W.A. No.708/2007& 5th respondent in W.P. No.17061/2007 The Commissioner Thiruthuraipoondi Municipality Thiruthuraipoondi Thiruvarur District. ... 3rd respondent in W.A. No.708/2007 and W.P. No.17061 of 2007 and 2nd respondent in W.P. No.47678/2006 The Assistant Director of Municipality Panagal Building Thanjavur. ... 4th Respondents in W.A.No.708/2007 The Assistant Divisional Engineer Sub Divisional Office Highways Department Thiruthuraipoondi Thiruvarur District. ... 5th Respondent in W.A.No.708/2007& 4th respondent in W.P.No.47678/2006 https://hcservices.ecourts.gov.in/hcservices/ The Divisional Engineer Highways Department Thiruvarur,Thiruvarur District. .. 6th Respondent in W.A.No.708/2007& 3rd respondent in W.P.No.47678/2006 The District Collector Thiruvarur. ... 7th respondent in W.A. No.708/2007, 2nd respondent in W.P. No.17061/2007 & 1st respondent in W.P. No.47678 of 2006 The Superintendent of Police Thiruvarur. The Superintending Engineer Highways Department Subramaniapuram Thiruchirapalli. ... Respondents 8 & 10 in W.A. No.708/2007 The Secretary to Government Highways Department Fort St. George ... 9th respondent in W.A. No.708/2007 Chennai – 600 009. The Additional Secretary to Government Highways Department, Government of Tamil Nadu, Fort St.George, Chennai-9. ..1st respondent in W.P. No.17061/2007 W.A. No.708/2007 has been filed against the order dated 29.1.2007 in W.P. No.43979 of 2002. Presented to this Court under Article 226 of the constitution of India to Writ of certiorarified mandamus to call for the records of the first respondent the proceedings of the Municipal Council, Thiruthuraipoondi dated 20.05.2002, including the resolution number 139 and to quash the same and direct the respondents 1 to 5 to remove the encroachment made by the respondents 7 to 15 in Survey No.158, mannargudi Road,Thiruthuraipoondi within a time frame as fixed by this Court. W.P. No.47678/2006 has been filed, seeking to issue a writ of mandamus, directing the respondents herein to take immediate steps to remove the encroachment in the interest of public in the main area near the old bus stand at Thiruthuraipoondi. W.P. No.17061 of 2007 has been filed, seeking to issue a writ of certiorari, to call for the records in respect of the impugned order issued by the first respondent vide his proceedings in Letter No.6433/HP2/07/1 dated 30.3.2007 and the consequential impugned communication in Na.Ka.No.9522/2007/U-3 dated 10.4.2007 issued by the second respondent and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Appellant & : Mr. N.R. Chandran, SC, for Petitioners Mr. R. Sureshkumar (W.A. No.708/2007 & W.P. No.17061/2007) Mr. S. Gajendran (W.P. No.47678/2006) For Respondents : Mr. R. Muthukumarasamy, SC, for Mr. S. Sathiyamoorthy for RR-1 & 2(Caveators) (W.A. No.708 of 2007) & for RR-4 & 5 (W.P. No.17061 of 2007) Mr. V. Subbarayan for R3 (W.A. No.708/2007 & W.P. No.17061/2007) & for R2 (W.P. No.47678/2006) Mr. D. Srinivasan, AGP for State COMMON JUDGMENT (JUDGMENT OF THE COURT WAS DELIVERED BY S.J. MUKHOPADHAYA, J.) Appellants in W.A. No.708/07 and respondents 7 to 15 to a public interest litigation, W.P. No.43979/02, have challenged the order dated 29th Jan., 2007, passed by learned single Judge. The appellants are running shops on road margin bearing survey No.158, Mannargudi Road, Thiruthuraipoondi, since 1967 and paying rent to the Thiruthuraipoondi Municipality (hereinafter referred to as 'Municipality'). The Municipal Council , by Resolution No.139, dated 20th May, 2002, having allowed the appellants/respondents to pay rent of those shops for the period 2000 onwards, the aforesaid public interest litigation was preferred by R.Krishnamurthy, 1st respondent to the writ appeal. Prayer was made to set aside Resolution No.139 dated 20th May, 2002 and to remove the encroachments made by the appellants/respondents on survey No.158, Mannargudi Road, Thiruthuraipoondi. Learned single Judge, by impugned order dated 29th Jan., 2007, having directed the 16th respondent, Secretary to the Government, Highways Department, Chennai, to take appropriate action, the writ appeal has been preferred against the said order. 2. Pursuant to the aforesaid order of this Court dated 29th Jan., 2007, the respondent, State of Tamil Nadu issued letter No.6433/HP2/07-1 dated 30th March, 2007, from its Highways Department and directed the Superintending Engineer (H), Trichy; the Collector, Thiruvarur District; the Commissioner, Thiruthuraipoondi Municipality and concerned Divisional Engineer to take steps as per High Court's direction. In view of such letter, a telephonic message No.9522/2007/F3 dated 10th April, 2007, was issued by the District Collector, Thiruvarur, directing the Divisional Engineer (Highways), Thiruvarur, Commissioner of Municipality, Thiruthuraipoondi and the Revenue Divisional Officer, Mannargudi as also the concerned Tahsildar to work together to remove the encroachments and to submit report. Aforesaid letter dated 30th March, 2007 and telephonic https://hcservices.ecourts.gov.in/hcservices/ message dated 10th April, 2007 have been challenged by the appellants separately in W.P. No.17061/07. 3. A separate public interest litigation, W.P. No.47678/06 has been filed for removal of encroachment and similar prayer made as was made in the earlier public interest litigation giving rise to the present appeal. In the above background, all the cases were heard together and disposed of by this common judgment. 4. According to the counsel for the appellants/writ petitioners of W.P. No.17061/07, they are not encroachers and running their respective shops on the road margins since long on the basis of licence granted by municipality and on payment of rent. Their grievance is that, learned single Judge passed the impugned order dated 29th Jan., 2007, without impleading them as party and without hearing them. In fact, it has given rise to the State Government's letter dated 30th March, 2007 and telephonic message dated 10th April, 2007, to evict them without verifying their records. It is submitted that the action will amount to eviction of the appellants/petitioners in violation of rules of natural justice. Learned counsel appearing on behalf of the 1st respondent to the appeal, who is the petitioner of the earlier public interest litigation, submitted that survey No.158 is a public road known as "Mannargudi Road". It is a State Highway and maintained by the municipality and, thereby, the municipality has no right to settle any portion of the road or its margin; such action will be also against public interest. Similar plea has been taken by learned counsel appearing on behalf of the petitioner in W.P. No.47678/06. Learned counsel appearing on behalf of the municipality tried to justify their action to run shops on road margins and referred to Section 270 of the Tamil Nadu District Municipalities Act, 1920. It was submitted that the municipality has power to allow persons to sell articles in public street by granting licence. 5. In this connection, we may observe that Section 270 is a law framed in the year 1920 when the principle of public interest was not deliberated by the Courts. The power to grant licence to sell articles on the street and the power to grant licence to establish a shop on the road or road margin being different, we are of the view that such ground cannot defeat the public interest litigation. We are not expressing any opinion in regard to Section 270 of the Tamil Nadu District Municipalities Act, 1920, in absence of any challenge, but one may doubt it as the said provision, if interpreted in the manner as submitted by the counsel for the municipality, may run counter to public interest. 6. We have heard the parties and noticed the rival contentions and also order passed by learned single Judge. 7. It has been accepted by the parties that no person can encroach over a public road or its margin, whether it is a national highway or State highway or municipal road. If there are encroachers, it is the duty of the State and its authorities to evict such persons in accordance with law. However, if any person disputes the right and title or nature of https://hcservices.ecourts.gov.in/hcservices/ land, not being a public land or road or claim right on the basis of sale deed, licence, patta, etc., in such cases, it is only after giving opportunity to the parties, an order could be passed by the competent authority for removal of encroachment. In case of disputed questions of title, one may move in suit and summary procedure cannot be followed. Similarly, if licence or patta issued giving right to occupy a land, it is open to the concerned authority to cancel such licence or patta after notice to the licencee/patta holder if it is found that the same is against public policy, such as licence granted or patta issued in regard to a road or road margin, which amounts to encroachment over public road. 8. By impugned order dated 29th Jan., 2007, learned single Judge has not determined the question whether one or other individual, including the appellants/contesting respondents 7 to 15 are encroachers over road or its margin. The matter has been remitted to the 16th respondent, the Secretary, Highways Department, Chennai, to take appropriate action in accordance with Section 36 of the Tamil Nadu District Municipalities Act, 1920, with regard to the alleged encroachment in survey No.158 of Thiruthuraipoondi town and pass appropriate order giving opportunity to the municipality. It appears that pursuant to the aforesaid order of this court, the State Government issued letter dated 30th March, 2007 and the other authority issued telephonic message dated 10th April, 2007. As the matter has been remitted for determination by the Secretary, Highways Department, we are not inclined to interfere with the said order, but, with a view to avoid injustice, we feel that the direction given by learned single Judge requires certain modification. We, accordingly modify the said order and issue the following directions :- (i) The Secretary, Department of Highways, Government of Tamil Nadu, Chennai, after notice to municipality, and if so necessary, on enquiry, will decide whether "Mannargudi Road" and its road margin in survey No.158 on which alleged encroachment is stated to have been made is a "State Highway" or a "municipal road". It will be open to the competent authority of the State or municipality to bring on record any material to show the status of the road, i.e., State Highway or municipal road. Such decision be taken within one month from the date of receipt/production of a copy of this order. (ii) On such determination, if it is found that the road belongs to the municipality, then the municipality will take steps u/s 36 of the Tamil Nadu District Municipalities Act, 1920, for removal of encroachments, if any. Such encroachment can be removed after hearing the parties, who allege to have encroached over the road or road margin, including those who may be running their shops on the basis of licence. In case it is found that encroachment is there over the road or road margin and/or such shops are situated over road or road margin, the municipality, in public interest, after notice to the parties, may cancel the licence and may take steps to rehabilitate those shopkeepers on some municipal land, which is not road or road margin, keeping in view that they were the licencee running their business since long. https://hcservices.ecourts.gov.in/hcservices/ (iii) If it is found that the road in question is a State Highway, the State authorities will remove the encroachments from the road, including the shops, if any, established without approval of the State Government, after notice to the parties. The procedure aforesaid to be completed, determination to be made and a reasoned order to be passed by the State/municipal authorities (competent authority) within six months from the date of receipt/production of a copy of this order. 9. The order passed by learned single Judge dated 29th Jan., 2007, in W.P. No.43979 /02 stands modified to the extent above. The Government Order dated 30th March, 2007 and telephonic message dated 10th April, 2007, may be acted upon only in the manner as ordered above. The parties will produce a copy of this order before the Secretary, Highways Department, Government of Tamil Nadu, Chennai; Commissioner, Thiruthuraipoondi Municipality; District Collector, Thiruvarur District; Secretary to Municipal Administration Department, Government of Tamil Nadu and the concerned Tahsildar, who are required to ensure compliance. The writ appeal as also the writ petitions stand disposed of with the aforesaid observations. But there shall be no order as to costs. GLN Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Commissioner Thiruthuraipoondi Municipality Thiruthuraipoondi Thiruvarur District. 2. The Assistant Director of Municipality Panagal Building Thanjavur. 3. The Assistant Divisional Engineer Sub Divisional Office Highways Department Thiruthuraipoondi Thiruvarur District. 4. The Divisional Engineer Highways Department Thiruvarur. https://hcservices.ecourts.gov.in/hcservices/ 5. The District Collector Thiruvarur. 6. The Superintendent of Police Thiruvarur. 7. The Secretary to Government Highways Department Fort St. George Chennai – 600 009. 8. The Superintending Engineer Highways Department Subramaniapuram Thiruchirapalli. +1 cc to Mr.S.Gajendran, Advocate Sr.No.3135. +2 ccs to Mr.S.Sathiyamoorthy, Advocate Sr.No.2972 & 2973. +1 cc to Mr.R.Suresh Kumar, Advocate Sr.No.3068. +1 cc to The Government Pleader Sr.No.3040. VC(CO) DCP/6.2 W.A. NO. 708 OF 2007 AND W.P. NOS. 47678/06 & 17061/07 https://hcservices.ecourts.gov.in/hcservices/