A. Abdul Farook vs Municipal Council, Perambalur & Ors

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.

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 24.11.2004, the Municipal Council vide a 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 4 District Collector, who, in terms of the guidelines issued in GOMs No.32 called for reports from the Divisional Engineer of Highways, Ariyalur and 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 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.

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.

On or about 24.1.2005, the appellant - Ward Councillor of Perambalur Municipality 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 of the High Court dismissed the said writ petition by its judgment and 5 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.

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.

(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.

(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, 17 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.

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) .............................J. [S.B. Sinha] .............................J. [Deepak Verma] New Delhi;

July 31 , 2009