A. ABDUL FAROOK versus MUNICIPAL COUNCIL, PERAMBALUR & ORS.

Citation: [2009] 11 S.C.R. 727 · Decided: 31-07-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2009] 11 S.C.R. 727 
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A. ABDUL FAROOK 
A 
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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 
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Government granting permission for installation of statues c 
and erection of arches - Permission to President of State 
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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, 
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should not have granted such permission in view of doctrine 
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of public trust - Thus, order of High Court is set aside. 
Government of Tamil Nadu issued a Notification 
F 
'{ 
GOMs No.32 granting permission for installation of 
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 
G 
requisitioned the Municipality to issue a No Objection 
Certificate for erecting arches outside the boundary line 
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> 
of Major District Road. District Collector recommended 
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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 
to allow arches to be put up. Hence the present appeals. 
c 
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 
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A. ABDUL FAROOK v. MUNICIPAL COUNCIL, 
729 
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PERAMBALUR & ORS. 
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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 commit

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