IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 25.10.2010
CORAM
THE HONOURABLE MR.JUSTICE R.SUDHAKAR
Writ Petition No.12799 of 2010
and
M.P.Nos.2 and 3 of 2010
A.Krishnamurthy. ... Petitioner
vs.
1.The Commissioner,
Pallavaram Municipality,
Pallavaram,
Chennai.
2.The Chairman,
Pallavaram Municipality,
Pallavaram,
Chennai.
3.Mr.E.Karunanidhi
Chairman,
Pallavaram Municipality,
Pallavaram,
Chennai. ... Respondents
Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records of the first respondent in Na.Ka.No.1783/10/E1 dated 31.5.2010 and quash the same.
For petitioner : Mr.E.Sampathkumar
For respondents : Mr.J.Rajakalifulla,
Government Pleader
Assisted
by Mr.B.Vijay,
Government Advocate
for R1
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O R D E R
Writ Petition is filed praying to issue a Writ of Certiorari, calling for the records of the first respondent in Na.Ka.No.1783/10/E1 dated 31.5.2010 and quash the same.
2. The brief facts of the case is as follows:- Petitioner is the Councillor of Ward No.19 in Pallavaram Municipality. He belongs to AIADMK Party. In the meeting held on 29.4.2010, among other issues, it was decided to expand the Pallavaram Bus Stand. In the meeting, it was recorded that after obtaining the permission from the National Highways Authorities, the work will be taken up. The petitioner’s grievance is that the Municipality has issued the tender notification dated 31.5.2010 without getting the permission/clearance of the National Highways Authorities for the proposed expansion of the bus stand. The work of the expansion of the bus stand by putting up a new construction without the permission of the National Highways Authorities will be in violation of the National Highways Act, 1956 (Act 48 of 1956) (hereinafter referred to as “the Act”). After completion of the new bus stand, if the National Highways Authorities initiate action as per law, then it will result in a loss of huge public money. The writ petition has been filed to stop the first respondent Municipality from wasting public money for the purpose of construction and expansion of the bus stand at Pallavaram. It is the plea of the petitioner that the construction is illegal and is likely to be removed by the National Highways Authorities. The tender notification is, therefore, bad and contrary to the resolution of the council. Hence, the present writ petition has been filed challenging the tender notification.
3. At the time of admission on 18.6.2010, interim order was passed as follows:-
“auction can proceed with and the same shall not be confirmed until further orders from this Court”.
4. The First respondent Commissioner of Municipality filed a petition along with counter-affidavit praying to vacate the above said interim order. In the counter-affidavit it is stated that the existing bus stand is not sufficient to cater to the high inflow of buses, besides, it lacked various public utility facilities, like toilet, drinking water, etc. Hence, the Municipality has taken a policy decision to remove the old Pallavaram Bus Stand and to reconstruct and expand the bus stand. This decision was taken after a combined inspection by the following officers (i.e.), Sub-Urban Police Commissioner, District Collector, National Highways Engineers, Revenue Department Officials, Municipal Commissioner and Municipal Engineer on 12.4.2010. Consequent to the inspection, the Sub-Urban Police Commissioner and the Kancheepuram District Collector issued instruction to the Municipal Commissioner to take necessary action for the expansion of the Pallavaram Bus Stand. Based on the instructions of the Sub-Urban Police Commissioner and the Kancheepuram District Collector, the Municipal Commissioner, Pallavaram Municipality prepared estimate for this work and placed it before the council for its consideration and the council by resolution No.47 dated 29.4.2010 approved the same.
5. The first respondent states that during the meeting the petitioner did not raise any objection against the resolution passed on 29.4.2010. In that meeting in respect of 17 subjects, resolution was passed. After obtaining the council’s resolution for removal, reconstruction and expansion of Pallavaram bus stand, the proposal was submitted to the District Collector for according administrative sanction. The District Collector (in-charge) accorded administrative sanction for this work. The Regional Executive Engineer, Chengalpattu, Municipal Administration Department has given the Technical sanction for Rs.45 lakhs for the removal, reconstruction and expansion of Pallavaram Bus Stand. All procedures required have been followed without any omission. The process for construction of the bus stand commenced only after obtaining no objection certificate from the Highways Authorities. No objection certificate from the City Highways Authorities was obtained on 1.7.2010 and the work order is yet to be issued. The municipality have fulfilled all the condition before commencing the work. The Municipality has followed all the guidelines and procedures for execution of a work, there is no possibility for wastage of money. The land where the bus stand is proposed to be expanded was previously encroached by a number of shops. This land was brought under the control of the Municipality after eviction of encroachments. If the expansion of the bus stand is not done, the Municipal land will be idle and it may again fall in the hands of encroachers. Without a proper bus stand, the public is put to lot of inconvenience. The Municipality has initiated action to remove encroachments, reconstruct and expand the bus stand in the interest of the public by way of providing additional bus bays, toilets, drinking water facilities in the Municipal land at the time of expansion of the bus stand. Petitioner’s contention is vague, baseless, against law and against the interest of the public. The Writ Petition must be dismissed in limini.
6. The only contention of the counsel for the petitioner at the time of hearing is that the proposed bus stand and the expansion is on a National Highways land and therefore, prior permission should be obtained before the tender notification and the work order is issued. This will be in consonance with the resolution of the Municipality. Since there is a violation of the mandatory provision, the petitioner prays that the tender notification should be set aside. Petitioner primarily, relies upon the reply dated 20.7.2010 given by the National Highways Authority in response to a query under Right to Information Act, which reads as follows:-
“With reference to your application under RTI Act, the following information is provided:
a. This office has not received any letter from Pallavapuram Municipality on the issue of dismantling of existing bus stand (Tambaram side).
b. There is no proposal by NHAI to assign any land to Pallavapuram Municipality in Chromepet.
c. No proposal by NHAI to assign any land to Pallavapuram Municipality.
d. No NOC has been issued to Pallavapuram Municipality.
e. This office has not received the letter No.Na.Ka.1783/10/E/dated 31.05.2010 from Pallavapuram Municipality.
f. Old Trunk Road forms part of the National Highway No.45 at Chromepet.
g. The land width of National Highway boundary is available in the Municipal Records of Pallavaram Municipality.”
According to the petitioner, a reading of the above reply of the National Highways Authority, establishes his plea that the Pallavaram Municipality has not taken the permission of the National Highways Authority to dismantle the existing bus stand and to put up the new one. He contended that since the National Highways Authority has not assigned any land to Pallavaram Municipality, the construction of the bus stand is illegal and unauthorised.
7. Learned counsel for the petitioner relies upon Section 24 of the Control of National Highways (Land & Traffic) Act, 2002, which reads as follows:-
“24. Prevention of occupation of highway land. (1) No person shall occupy any highway land or discharge any material through drain on such land without obtaining prior permission, for such purpose in writing, of the Highway Administration or any officer authorised by such Administration in this behalf.
(2) The Highway Administration or the officer authorised under sub-section (1) may, on an application made by a person in this behalf and having regard to the safety and convenience of traffic, grant permission to such person
(i) to place a movable structure on the Highway in front of any building owned by him or to make a movable structure on support of such building and over the Highway, or
(ii) to put up a temporary awning or tent or other similar construction or a temporary stall or scaffolding on the Highway, or
(iii) to deposit or cause to be deposited, building materials, goods, for sale or other articles on any Highway, or
(iv) to make a temporary excavation for carrying out any repairs or improvements to adjoining buildings,
and such permission shall be granted subject to the conditions and on payment of the rent and other charges by issuing permit in the form as may be prescribed:”
It is contended that there is a breach of Section 24 of the Control of National Highways (Land & Traffic) Act, 2002 and therefore, the tender notification is bad.
8. Thiru Raja Kalifulla, learned Government Pleader appearing for the respondents Municipality submitted that the writ petition is politically motivated and against public interest. There is a misconception in this case, inasmuch as the bus stand, which is already existing, is sought to be expanded on the rear side after removal of encroachments. The portion which is to be expanded belongs to the Municipality and therefore, the permission of National Highways Authority is not necessary for the expansion work to be undertaken in the land reclaimed by the Municipality by removing encroachments. The proposed expansion of the bus stand is intended for the benefit of the public of the Pallavaram Municipality. It is intended to ease the congestion of the main highway which is already clogged due to heavy flow of traffic.
9. Learned Government Pleader produced copies of documents issued by the National Highways authority, more particularly, the letter dated 14.8.2002 of the General Manager (PI)-IV, National Highways Authority of India addressed to the Secretary to Government of Tamil Nadu which reads as follows:-
“Sub: Maintenance to NH-45 from km 11/7 to km 28/0 Handing over to State Government.
Ref: Minutes of the meeting of Chief Secretary, Govt. of Tamil Nadu with Chairman, NHAI on 31.05.2002.
Sir,
This is in reference to the minutes of the meeting held with Chief Secretary, Govt. of Tamil Nadu dated 31.05.2002 with Chairman, NHAI and other officers. The above stretch of NH-45 is hereby transferred to the Govt. of Tamil Nadu for maintenance with immediate effect. The requirement of funds for this purpose may be submitted to Project Director, Chennai office so that same could be examined and the decision to release the said funds could be taken.
You are, therefore, requested to kindly take up the maintenance of the said section in accordance with the Most specifications.”
10. Based on the above proceedings, the Assistant Divisional Engineer(H), Chennai City Roads Sub Division-I, Chennai-15 has taken charge of the Highway from the National Highways Authority of India on 22.10.2000 for maintenance.
11. National Highways Authority, PIU-Chennai, 8, 29th Cross St., Indira Nagar, Adyar, Chennai-20 handed over the stretch of NH 45 reach from km 11/7 to km 28/0-Kathipara junction to Tambaram Bus Stand Section to Divisional Engineer (General), Highways Chennai City Roads Division, Chennai, which includes the present site which is in issue.
12. Thereafter, by letter dated 1.7.2010, the Divisional Engineer (Highways), Chennai Metropolitan City Roads Division, Chennai-600015 issued no objection certificate to the Commissioner, Pallavapuram Municipality, Chromepettai, Chennai-600044 to dismantle the existing bus stand and expand the same. The no objection letter dated 1.7.2010 reads as follows:-
VERNACULAR (TAMIL) PORTION DELETED
13. Then, again by letter dated 17.9.2010, the Divisional Engineer(Highways), Chennai City Metropolitan Roads Division, Chennai-15 stated that the site in question is under the control and maintenance of Chennai Metropolitan Roads Division. The letter dated 17.9.2010 reads as follows:-
VERNACULAR (TAMIL) PORTION DELETED
14. Learned Government Pleader therefore, submitted that the above documents will clearly prove that the National Highways Authority has already handed over the control and maintenance of the stretch to the State Highway including the Pallavaram Bus Stand portion. The permission of the competent authority has been obtained. Nothing more needs to be done. There is, therefore, absolutely no basis for filing the present writ petition. The writ petition has been filed due to personal animosity and to gain political mileage. He further, submitted that the petitioner has deliberately failed to add the National Highways Authority as party respondent and this is fatal to the writ petition. He, therefore, prayed for dismissing the writ petition.
15. The case of the petitioner primarily revolves around the power of the National Highways Authority to take action for violation of the above stated Act. If that be so, the writ petitioner should have added the National Highways Authority as party respondent. Having failed to do so, the adjudication of the petitioner claim will be an exercise in a futility and a sheer waste of time. Petitioner is also not a party to the tender proceedings and is, therefore, not a person aggrieved. This writ petition has been filed primarily pleading public interest, but facts belies the petitioner’s bona fides. If at all, it is the National Highways Authority which should have proceeded if there is an encroachment of its land. The petitioner has not even cared to inform the authority of the alleged encroachment which is not the case here in any case.
16. On the contrary, the records produced by the respondent Municipality clearly show that even as early as August, 2002, a stretch of land including the site in question has been handed over to the Chennai City Roads Division by the National Highways Authority of India. They have also given their no objection for the construction of the bus stand and for expansion subsequently.
17. It is clear that the authorities have considered all the relevant issue for the construction of the new bus stand based on the survey made by several authorities, viz., Sub-Urban Police Commissioner, District Collector, National Highways Engineers, Revenue Department Officials, Municipal Commissioner and Municipal Engineer on 12.4.2010. This inspection was done to ease the congestion on the Main Highway choked by vehicular traffic. The intention of the respondents Municipality is to provide bus shelter and other facilities to the public at large, more particularly, the people residing in Pallavaram Municipality. If the competent authorities have already handed over the road in question to the State authorities for maintenance and have also given their no objection for construction/expansion of the bus stand, it is not for the petitioner to question the tender notification merely on an hypothetical plea that there is a violation of the Act. Petitioner has no locus standi to raise the issue.
18. If the petitioner has any grievance, he can approach the competent authority including the National Highways Authority pointing out his grievance and it is for the said authority to take action as per law, if there is a violation. It has to be borne in mind that providing bus shelter and other facilities is the duty of the State. The Municipality has to provide facilities for public use and in many other places there is a cry by public for better civic facilities. In this case, the petitioner’s grievance appears to be personal with no basis.
19. It is the specific stand of the respondent Municipality in para 10 of the counter-affidavit that the area proposed for expansion of the bus stand vests with the respondent Municipality. Para 10 of the counter-affidavit reads as follows:-
“Moreover, the existing bus stand was constructed by the Municipality and it is being maintained by the Municipality. The area proposed for expansion is vested with the Municipality. This land was previously encroached by a number of shops. This land was brought to the utility of the Municipality after eviction of encroachments in the interest of the public. If the expansion of the bus stand is not done, the Municipal land will be idle and it may again fall in the hands of encroachers and it will cause a lot of inconvenience to the public. The Municipality has initiated action to remove, reconstruct and expand the bus stand in the interest of the public by way of providing additional bus bays, providing toilets, drinking water facilities and protecting the Municipal land for the expansion of the bus stand.”
Since a specific plea has been taken that the land in which the bus stand is to be expanded belongs to the respondent municipality and the National Highways Authority is not a party in the writ petition, the Court is not inclined to go into the factual aspects of the disputes raised by the writ petitioner. The writ petition is totally misconceived and lacks bona fides.
20. That apart the plea of the petitioner that permission in terms of Section 24 of the Act has not been obtained by the respondent Municipality does not appeal to this Court, as a reading of the above Section makes it clear that the permission that is to be given by the authority is only temporary and it relates to any work undertaken by the owners of property adjacent to the National Highways. If any temporary shelter like, awning, tent, scaffolding, etc., is to be put up, then permission has to be taken. If there is any construction activities in the land adjacent to the National Highway, then permission for deposit of building materials, goods, articles, etc., has to be taken. Even for temporary construction or carrying out repairs or improvements to building adjoining to National Highways, permission has to be taken. This Section 24 provides that permission will be granted subject to conditions mentioned under sub section (3) of Section 24 of the Act and that the permission is purely temporary for a period of one month. By any stretch of imagination, this cannot be made applicable to bus shelters. In this case, the State Highway Authorities who are in control of the portion of the Highways have given their no objection. Petitioner’s plea, therefore, has no factual or legal basis.
21. In view of the above, the Writ Petition is dismissed, however, there will be no order as to costs. The interim order of this Court dated 18.6.2010f is vacated and the M.P.No.2 of 2010 is dismissed. Consequently, M.P.No.1 of 2010 is closed.
ts
To
1.The Commissioner,
Pallavaram Municipality,
Pallavaram,
Chennai.
2.The Chairman,
Pallavaram Municipality,
Pallavaram,
Chennai