Madras High Court
R.Kathiravan vs The Divisional Engineer on 27 January, 2025
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P(MD)Nos.29035, 29217 & 30354 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 07.01.2025
PRONOUNCED ON : 27.01.2025
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P(MD)Nos.29035, 29217 & 30354 of 2024
and
W.M.P(MD)Nos.29035 & 24599 of 2024
& 286 of 2025
1.W.P(MD)No.29035 of 2024:
R.Kathiravan ... Petitioner
Vs
1.The Divisional Engineer,
Highways Department,
Construction and Maintenance,
Near Thamarai Thotti,
K.Pudur, Madurai - 625 002.
2.The Assistant Divisional Engineer,
Highways Department,
Construction and Maintenance,
Sub-Division - Madurai South,
Near District Court,
Madurai - 625 002.
3.The Assistant Engineer,
Highways Department,
Construction and Maintenance,
Sub-Division Madurai South,
Near District Court,
Madurai - 625 002.
4.The Tahsildar,
Thiruparankundram Taluk,
Madurai.
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5.The Assistant Commissioner of Police,
Thidir Nagar Circle,
S.S.Colony,
Madurai - 625 016.
6.The Inspector of Police,
C-3, Subramaniyapuram Police Station,
Madurai - 625 003. ... Respondents
PRAYER: Writ Petition filed under Article 226 of Constitution of
India, to issue a Writ of Certiorarified Mandamus calling for the
records pertaining to the impugned order in Ku.No.818/2024/E.Va.A
dated 29.11.2024 passed by the second respondent and quash the
same as illegal and consequently direct the respondents to grant
permission to erect the Anaithu India Anna Dravida Munnetra
Kalagam (AIADMK) Party's flagpole at Ward No.74, Bus-Stop,
Opposite to Jeyam Theatre, Bye-pass Road, Palanganatham,
Madurai City.
For Petitioner : Mr.P.Balamurugan
For RR 1 to 4 : Mr.R.Baskaran
Additional Advocate General
Assisted by
Mr.S.Shanmugavel
Additional Government Pleader
For RR 5 & 6 : Mr.Hasan Mohammed Jinnah
State Public Prosecutor
Assisted by
Mr.R.M.Anbunithi
Additional Public Prosecutor
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2.W.P(MD)No.29217 of 2024:
K.R.Chithan ... Petitioner
Vs
1.The Commissioner,
Madurai Corporation,
Arignar Anna Maligai,
Madurai.
2.The District Revenue Officer,
Collectorate Campus,
Madurai.
3.The Revenue Divisional Officer,
Madurai North Division,
Madurai District.
4.The Tahsildar,
Madurai North Taluk Office,
Madurai District.
5.The Assistant Commissioner,
Madurai Corporation,
Madurai North Division No.II,
Race Course Road,
Madurai.
6.The Assistant Commissioner of Police,
Sellur Circle,
Madurai District.
7.The Inspector of Police,
D3 Koodal Nagar Police Station,
Madurai. ... Respondents
PRAYER: Writ Petition filed under Article 226 of Constitution of
India, to issue a Writ of Mandamus directing the respondents 1 to 5
to grant permission to erect the Anaithu India Anna Dravida
Munnetra Kalagam (AIADMK) Party's flagpole at opposite to MGR
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W.P(MD)Nos.29035, 29217 & 30354 of 2024
Mandram at Kamatchi Nagar, Vilankudi, Ward No.20, Madurai City
within a stipulated time fixed by this Court.
For Petitioner : Mr.P.Balamurugan
For RR 1 & 5 : Mrs.S.Devasena
Standing Counsel
For RR 2 to 4 : Mr.D.Gandhi Raj
Special Government Pleader
For RR 5 & 6 : Mr.Hasan Mohammed Jinnah
State Public Prosecutor
Assisted by
Mr.R.M.Anbunithi
Additional Public Prosecutor
3.W.P(MD)No.30354 of 2024:
V.Chandran ... Petitioner
Vs
1.The District Collector,
Madurai District,
Madurai.
2.The Tahsildar,
Taluk Office,
Periayur Taluk,
Madurai District.
3.The Inspector of Police,
Saptur Police Station,
Madurai District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of Constitution of
India, to issue a Writ of Mandamus to direct the respondents for
reinstalling the Viduthalai Chiruthaigal Katchi (VCK) party flagpole
and the name board at Athipatti Village, Peraiyur Taluk, Madurai
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W.P(MD)Nos.29035, 29217 & 30354 of 2024
District by considering the petitioner's representation dated
25.11.2024 within the time frame fixed by this Court.
For Petitioner : Mr.A.Ramkumar
For RR 1 & 2 : Mr.R.Baskaran
Additional Advocate General
Assisted by
Mr.D.Gandhi Raj
Special Government Pleader
For R – 3 : Mr.Hasan Mohammed Jinnah
State Public Prosecutor
Assisted by
Mr.R.M.Anbunithi
Additional Public Prosecutor
COMMON ORDER
W.P(MD)No.29035 of 2024 has been filed by the
petitioner challenging the order passed by the second respondent
dated 29.11.2024 thereby rejecting the request made by the
petitioner to erect their party flagpole at Ward No.74, Bus-Stop,
Opposite to Jeyam Theatre, Bye-pass Road, Palanganatham,
Madurai.
2.W.P(MD)No.29217 of 2024 has been filed by the
petitioner for a direction directing the respondents to grant
permission to erect their party flagpole at opposite to MGR Mandram
at Kamatchi Nagar, Vilankudi, Ward No.20, Madurai City.
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3.W.P(MD)No.30354 of 2024 has been filed by the
petitioner for a direction directing the respondents to grant
permission for reinstalling their party flagpole at Athipatti Village,
Peraiyur Taluk, Madurai District.
4.In all the Writ Petitions, the issue is common and as
such, this Court dispose of all the Writ Petitions by common order.
5.The petitioner in W.P(MD)No.29035 of 2024 submitted
a representation before the respondents seeking permission to erect
their party flagpole at Ward No.74, Bus-Stop, Opposite to Jeyam
Theatre, Bye-pass Road, Palanganatham, Madurai and the same
was rejected by the second respondent dated 29.11.2024, on the
ground that there would be possible for accident.
6.W.P(MD)Nos.29217 and 30354 of 2024 have been
filed by the petitioner for a direction directing the respondents to
grant permission to erect their party flagpole in their respective
mentioned places.
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7.This Court raised the following questions to the
respondents:
(i) Whether any law provides granting
permission to erect the political parties or
Communities or Religions or Organizations flagpole
permanently in the land owned by the National
Highways, State Highways, Corporations,
Municipalities and Local Bodies.
(ii) What basis on which the Police
authorities and the Revenue authorities are granting
No Objection Certificate for erecting the political
parties, Communities, Religions and organizations'
flagpoles permanently in the public land owned by
various authorities.
(iii) How many cases have been
registered with regard to disputes between the
political parties while erecting their respective
flagpole, while celebrating public functions near their
respective party flagpole and hindrance to public
and transport or any untoward incident which had
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happened due to the erection of respective parties
flagpole.
8.The Director General of Police/Head of Police Force,
Tamil Nadu filed a status report stating that so far 114 cases were
registered in connection with the issue raised by this Court arising
out of the erection of flagpoles of political parties. Out of 114 cases,
77 cases were registered for erecting flagpoles without getting
necessary permission from the authorities and 37 cases were
registered against grave incidents involving prevention of discharge
of duty by Government servants, damage to public property, road
roko/agitations, stone pelting hurt/grievous hurt/attempt to murder
and Prevention of Atrocities Act. Further revealed from the status
report that already the Hon'ble Division Bench of this Court issued
directions in W.P.No.17768 of 2016, dated 02.04.2019
[A.Radhakrishnan Vs. Chief Electoral Officer, Secretary to
Government and others] to remove and regulate the erection of
flagpoles of political parties in public places and roads. The
directions issued by the Hon'ble Division Bench of this Court in
W.P.No.17768 of 2016, dated 02.04.2019 are as follows:
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“19. Erection of poles without permission is an
encroachment, as per provisions of the statutes extracted
supra. Such encroachments noticed already have been
moved. Therefore, it is for the authorities under the above-
said statutes to ensure that there is no fresh encroachment
after the declarations of elections. There shall not be any
flagpoles with or without construction, on any streets,
roads, state or national highways, as the case may be,
without permission of the authorities under the above-said
Acts.
20. Judicial notice be taken that normally when
functions are held by the political parties or other
organizations or by individuals, temporary poles are
erected and while doing so, roads and pavements are
damaged. Judicial notice is also taken that they are not
repaired or resurfaced immediately, but, at times repaired
after considerable time, resulting in loss of exchequer to
the Government or Local bodies, as the case may be. In
the light of the statutory provisions, providing penal
action and recovery, hitherto, penal action and steps to
recover the damages caused, to the roads, streets, etc, be
assessed and accordingly action taken. Respondents are
directed to issue necessary instructions to all the
subordinate officers for strict compliance of this order.
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21. Field Officers be accordingly directed to report
to the concerned district authorities, to take action. Field
Officers be instructed that violation of any direction
issued by the authorities, departmental action would be
taken. Respondents to ensure strict compliance of this
order. Assistance of police be given wherever necessary.
22. If any permission is sought for to put up flag
poles, the same shall be accorded in accordance with the
statutory provisions. District Collectors and the competent
authorities under the above Statutes are directed to
monitor enforcement of the orders passed by this Court
periodically, once in a month. If there are violators,
stringent action should be taken. District Collectors are
also directed to periodically review once in two months
and send a report to the Heads of the Departments.”
The above directions were duly complied with.
9.The Divisional Engineer, Highways Department filed a
counter-affidavit in W.P(MD)No.29035 of 2024 and on the
submissions made by Mr.R.Baskaran, learned Additional Advocate
General would reveal that the public streets and roads vest with the
State Government and the State is the trustee on behalf of the
public. Though the general public are entitled as beneficiaries to use
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the roads and streets as a matter of right, it is limited only by the
similar rights possessed by every other citizen to use the pathways.
The State is entitled to impose such limitations to the users as may
be requisite for protecting the rights of the general public.
Therefore, the State has power to grant permission or reject the
permission to erect anything in the public place such as roads,
streets etc. Hence, the request made by the petitioner in
W.P(MD)No.29035 of 2024 cannot be considered and the Writ
Petition itself is liable to be dismissed.
10.Mr.Hasam Mohammed Jinnah, learned State Public
Prosecutor appearing on behalf of the Police would submit that there
is no specific provision under any law to grant permission to erect
the political party flagpole in the public place. However, on the basis
of the No Objection Certificate issued by the concerned Revenue
Department and the Police Department, the particular Department
where the permission sought for to erect the flagpole was granted
permission to erect the flagpole. As directed by the Hon'ble Division
Bench of this Court in W.P.No.17768 of 2016, dated
02.04.2019 [A.Radhakrishnan Vs. Chief Electoral Officer,
Secretary to Government and others] in all Districts, the
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unauthorized erected flagpoles are removed from time to time and
necessary action have been taken as against the person who
erected the flagpole unauthorizedly.
11.The learned State Public Prosecutor also relied upon
the order of the Hon'ble Supreme Court of India in I.A.No.10 of
2012 in SLP(Civil)No.8519 of 2006 dated 18.01.2013 [Union
of India Vs. State of Gujarat and others] in which, the Hon'ble
Supreme Court of India dealt with the issue of installation of statue
in Kannyakumari National Highway near bus stand of
Neyyantinkkara-Poovar Road, Neyyatinkkara, Kerala and issued
direction that the State Government shall not grant any permission
for installation of any statue or construction of any structure in
public roads, pavements, sideways and other public utility places.
This direction shall apply to all States and Union Territories. The
concerned Chief Secretary/Administrator shall ensure compliance of
the above order. Even then, the authorities from the respective
Departments grant permission/licence to erect permanent flagpole
in the public utility places. Therefore, he prayed to issue necessary
directions to regulate the erection of political parties and other
organizations flagpoles in the Government property as well as
private properties.
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12.Heard the learned counsel appearing on either side
and perused the materials placed before this Court.
13.On perusal of the pleadings, status report, counter-
affidavit and other relevant records the following points arise for
consideration in these Writ Petitions:
(i) Whether any law permits the political
parties, Communities, Religions and Organizations etc.,
to erect their respective flagpole permanently in the
public places or the land owned by the National
Highways, State Highways, Corporation, Municipality and
Local Bodies.
(ii) Whether the Revenue Department and
the Police Department have jurisdiction/power to issue
No Objection Certificate to erect flagpoles of political
parties, Communities, Religions and Organizations etc.
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(iii) Any temporary structures erected in the
National Highways, State Highways, Corporations,
Municipalities, Local Bodies and Organizations are liable
to pay rent or not.
14.Everywhere in the public places such as bus-stop,
junctions of the road, corners of the street, infront of the parks and
adjacent to the road, there are permanent flagpoles erected by their
respective political parties. In some places, there are flagpoles
erected by particular community people and in some places, there
are flagpoles erected by particular Religions in order to endorse
their presence. It causes nuisance, obstructing free flow of traffic,
leads to quarrel between political parties and also dangerous to life
of general public. Therefore, a Public Interest Litigation Writ Petition
was filed in W.P.No.17768 of 2016 for a direction directing the
respondents to take action to remove the flagpoles erected in public
places permanently or temporarily all over the State of Tamil Nadu.
The Hon'ble Division Bench of this Court by order dated 02.04.2019,
issued the above mentioned directions. In fact, while pending the
Writ Petition, the Hon'ble Division Bench of this Court directed the
official respondents to file a status report with regard to the menace
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of erecting flagpoles near the side of the State and National
Highways etc. At the first instance, the status reports were filed
from 31 Districts of the State of Tamil Nadu which would reveal that
58,971 flagpoles were erected without permission and 58,172
flagpoles have been removed. Subsequently, another status reports
were received from the remaining 10 Districts. Accordingly, the
flagpoles which were erected without permission were removed and
the flagpoles which were erected with permission are maintained by
their respective political parties and other organizations.
15.The roads maintained by the National Highways
Authority of India are governed by the National Highways Authority
of India Act, 1988. The roads maintained by the National Highways
is governed by the National Highways Act, 1956. The State
Highways, major District roads, other District roads are governed by
the Tamil Nadu Highways Act, 2001. The roads maintained by local
bodies such as Corporations, Municipalities, Town Panchayats,
Panchayats etc are governed by the Tamil Nadu Urban Local Bodies
Rules, 2023. It is relevant to extract the provisions of those Acts
hereunder and the related statutes with regard to the erection of
temporary or permanent structures in the land owned by the State
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Highways, National Highways, Corporations, Municipalities and Local
Bodies to answer the first point.
The Tamil Nadu Highways Act, 2001:
16.The provision under Section 26 of the Tamil Nadu
Highways Act, 2001, deals with the prevention of unauthorized
occupation of Highways. It is relevant to extract the provision under
Section 26 of the Tamil Nadu Highways Act, 2001 hereunder:
"26. Prevention of unauthorised occupation of highway.-
(1) No person shall occupy or encroach on any highway
within the highway unauthorised occupation of boundaries.
Highway.
(2) Notwithstanding anything contained in sub-section
(1), the Highways authority may, with the concurrence of the
Collector and with due regard to the safety aid convenience of
traffic and subject to such conditions, and on payment of such
rent or other charges as may be prescribed, grant permission,
of a temporary nature, to any person-
(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 awning or tent, pandal or other similar erection
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or a temporary stall or 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
(d) to make a temporary excavation on any highway for
carrying out any repairs or improvements to building on lands
adjoining such highway:
Provided that no such permission shall be deemed to be
valid beyond a period of one year, unless it is expressly
renewed by the Highways authority. (3) permission granted
under sub-section (2) shall clearly specify the date upto which
and the purpose for 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. (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 the highway occupied by him, after restoring it to
the same state as it originally stood before the occupation by
him. (5) The Highways authority shall maintain a complete
record of all such permissions granted, and shall also cause an
inspection to be made in every case at the expiration of the
period upto which such occupation has been permitted, to
ensure that the portion of the highway has actually been
vacated. (6) The permission granted under sub-section (2)
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shall be in such form and subject to such conditions as may be
prescribed.”
Thus, it is clear that only temporary occupation can be permitted
that too not exceeding the period of one year by collecting rent or
other charges with the concurrence of the Collector and with due
regard to the safety aid and convenience of traffic.
17.The provision under Section 30 of the Tamil Nadu
Highways Act, 2001, deals with the restoration of property to its
original state where it is dealt with in contravention of Section 9. It
is relevant to extract the provision under Section 30 of the Tamil
Nadu Highways Act, 2001, which reads as follows:
“30.Restoration of property to original state where it is
dealt with in contravention of section 9.-
(1) Where any person has erected any building or made
or extended any excavation or carried out any mining or other
operation or made any material change in the use of land, or
constructed, formed or laid out any work of means of access
or any other acts in contravention of section 9 or in
contravention of any of the terms and conditions of the
permission granted under sub-section (2) of section 26, the
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'Highways authority may, by order, require such person to
restore the land or building to its original condition or to
bring the land or building in conformity with the terms and
conditions specified in such permission, within such period as
may be specified in the order. (2) If such person fails to
comply with such order within the period specified in the
order, the Highways authority may itself take such measures
as appear to it to be necessary to give effect to the order and
recover the cost thereof from such person as an arrear of land
revenue.”
Accordingly, if any violation of the condition imposed while
permitting to occupy temporarily and after a period of permission if
the said temporary structure is not removed, it shall be removed at
the cost of that particular person. Therefore, the Tamil Nadu
Highways Act, 2001 does not permit to erect any permanent
structure such as flagpole by any persons in the land owned by the
State Highways.
The Control of National Highways (Land and Traffic) Act,
2002:
18.Section 24 of the Control of National Highways (Land
and Traffic) Act, 2002, deals with the prevention of occupation of
highway land and permission to be granted to place a movable
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structure on the Highway in front of any building owned by a person
or to make a movable structure on support of such building and
over the Highway. It is relevant to extract the provision under
Section 24 of the Control of National Highways (Land and Traffic)
Act, 2002 hereunder:
“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
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(ii) to put up a temporary lawning 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: Provided that no such permission shall
be valid beyond a period of one month at a time from
the date on which the permission has been granted
unless it is renewed by the Highway Administration or
such officer on an application made by such person for
the renewal of the permission.
(3) The permission granted under sub-section
(2) shall specify therein— (i) the time up to which the
permission is granted; (ii) the purpose of such
permission; (iii) the portion of the Highway in respect
of which the permission has been granted, and shall be
accompanied with a plan or sketch of such portion of
Highway.
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(4) The person, to whom the permit has been
issued under sub-section (2), shall produce the permit
for inspection whenever called upon to do so by any
officer of the Highway Administration and shall, on the
expiry of the permission granted under such permit,
restore the portion of the Highway specified in the
permit in such condition as it was immediately before
the issuing of such permit and deliver the possession of
such portion to the Highway Administration.
(5) The Highway Administration or the officer
issuing the permit under sub-section (2) shall maintain
a complete record of all such permits issued, and shall
also ensure in every case at the expiration of the period
up to which the permission under a permit is granted
under that sub-section that the possession of the
portion of the Highway in respect of which such
permission was granted has been delivered to the
Highway Administration.”
19.It is also relevant to extract the provision under
Section 25 of the Control of National Highways (Land and Traffic)
Act, 2002, which deals with the grant of lease or licence of Highway
land for temporary use hereunder:
“25. Grant of lease or licence of highway land
for temporary use:-
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The Highway Administration or the officer
authorised by such Administration in this behalf may, having
regard to the safety and convenience of traffic and subject to
such conditions as may be prescribed and on payment of
prescribed rent or other charges, grant lease or licence of
highway land to a person for temporary use: Provided that no
such lease shall be valid for more than five years at a time
from the date on which such lease has been granted unless
renewed by the Highway Administration or such officer.”
Thus, it is clear that the Highway administration can grant a lease or
licence for the Highways Land to a person for temporary use. It
does not provide any licence or permission to erect any permanent
structure such as flagpole.
20.Further Section 26 of the Control of National
Highways (Land and Traffic) Act, 2002 deals with the removal of
unauthorized occupation and Section 27 of the Control of National
Highways (Land and Traffic) Act, 2002 deals with recovery of cost of
removal of unauthorized occupation and fine imposed.
21.Therefore, no provision under the Control of
National Highways (Land and Traffic) Act, 2002 provides
permission/licence or lease to erect any permanent flagpole
by the political parties or any other organizations.
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The Chennai City Municipal Corporation Act, 1919:
22.The provisions under Sections 220 and 223 of the
Chennai City Municipal Corporation Act, 1919, deal with the
Prohibition against obstructions in streets and power to allow certain
projections and erections and it is relevant to extract the same
hereunder:
“220. Prohibition against obstructions in streets.—
No one shall build any wall or erect any fence or other
5[obstruction or projection or make any encroachment] in
or over any street 6[or any public place, the control of
which is vested in the corporation] except as hereinafter
provided.
223. Power to allow certain projections and
erections.—(1) The Commissioner may grant a licence,
subject to such conditions and restrictions as he may think
fit, to the owner or occupier of any premises—
(a) to put up or continue to have verandas,
balconies, sun-hades, weather frames and the like, to
project over a street. or (b) in streets in which the
construction of arcades has been sanctioned by the
council, to put up or continue to have an arcade, or to
construct or to continue to have any step or drain-
covering necessary for access to the premises].
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(2) With the concurrence of the commissioner of
police, the commissioner may grant a licence. Subject to
such conditions and restrictions as he may think, fit, for
any temporary construction in any street or in any public
place, the control of which is vested in the corporation.
(3) No licence shall be granted under sub-section
(1) if the projection or construction is likely to be injurious
to health or cause public inconvenience or otherwise
materially interfere or result in material interference with
the use of the road as such.
(4) On the expiry of any period for which a licence
has been granted under this or after due communication of
an order of suspension or revocation of such licence, the
commissioner may, without notice, cause any projection or
construction put up under sub-section (1) or (2) to be
removed, and the cost of so doing shall be recoverable in
the manner provided in section 387 from the person to
whom the licence was granted.
1[(5) The council shall have power to lease road
sides and street margin vested in the corporation for
occupation on such terms and conditions and the such
period as it may fix :
Provided that no such lease for any term exceeding
three years shall be valid unless the sanction of the State
Government therefore shall have been first obtained :
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Provided further that if the State Government
consider that any occupation of a road side or street
margin under a lease granted by the council under this
section is likely to be injurious to health or cause public
inconvenience or otherwise materially interfere with the
use of the road side or street margin as such, the State
Government may direct the council to cancel or modify the
lease and the council shall thereupon cancel or modify the
lease accordingly.]”
23.The Chennai City Municipal Corporation Act,
1919 also does not provide any provision to grant licence or
permission to erect permanent flagpole in the land owned by
the Chennai City Municipal Corporation. It provides power to
grant of licence to put up or continue to have some structures
projecting over the street that too with conditions such as without
causing any public inconvenience, injurious to health, otherwise
materially interfere with the use of the roadside or street margins.
Insofar as the Hoardings, Advertisements, Elections or other things
can be permitted on payment of fee as may be prescribed by the
regulations.
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The Tamil Nadu District Municipalities Act, 1920:
24.It is also relevant to rely upon the provisions under
Sections 180, 182, 183 and 186 of the Tamil Nadu District
Municipalities Act, 1920 hereunder:
“180. Prohibition against obstructions in or over
streets .—
No one shall build any wall or erect any fence or
other obstruction, or projection, or make any encroachment
in or over any street, except as hereinafter provided.
182. Removal of encroachments .— (1) The 1
[Executive Authority] may, by notice, require the owner or
occupier of any premises to remove or alter any projection,
encroachment or obstruction (other than a door, gate, bar or
ground-floor window) situated against or in front of such
premises and in or over any street.
(2) If the owner or occupier of the premises proves
that any such projection, encroachment or obstruction has
existed for a period sufficient under the law of limitation to
give any person a prescriptive title thereto or that it was
erected or made with the permission or licence of any
municipal authority duly empowered in that behalf, and that
the period, if any, for which the permission or licence is
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valid has not expired, the Municipal Council shall make
reasonable compensation to every person who suffers
damage by the removal or alteration of the same.
183. Power to allow certain projections and erections
.— (1) The Council may grant a licence, subject to such
conditions and restrictions as it may think fit, to the owner
or occupier of any premises to put up verandas, balconies,
sunshades, weather-frames and the like, to project over a
street, or in streets in which the construction of arcades has
been sanctioned by the Council, to put up an arcade; or to
construct any step or drain-covering necessary for access to
the premises.
186. Prohibition against making holes and causing
obstruction .—(l) No person shall make a hole or cause any
obstruction in any street, unless, he previously obtains the
permission of the 1 [Executive Authority] and complies with
such conditions as that officer may impose. (2) When such
permission is granted, such person shall, at his own
expense., cause such hole or obstruction to be sufficiently
fenced and enclosed until the hole or obstruction is filled up
or removed and shall cause such hole or obstruction to be
sufficiently lighted during the night.
Accordingly, no one shall build any wall or erect any fence or other
obstruction or projection or make any encroachment in or over any
street with certain exceptions. Section 186 of the Tamil Nadu
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District Municipalities Act, 1920, is also clear that no person shall
make a hole or cause any obstruction in any street without any
previous permission.
25.Therefore, the Tamil Nadu District
Municipalities Act, 1920 also does not provide any provision
to grant permission or licence to erect permanent flagpoles
of any political parties or organizations in the land owned by
the Municipalities.
The Tamil Nadu Panchayats Act, 1994:
26.Further, it is relevant to rely upon the provision under
Section 220 of the Tamil Nadu Panchayats Act, 1994 hereunder:
“220.General provisions regarding licence and
permissions:
(1) Save as otherwise expressly provided in or may
be prescribed under this Act, every application for any licence or
permission under this Act or any rule, by-law or regulation made
thereunder, or for the renewal thereof, shall be made not less than
thirty and not more than ninety days before the earliest date with
effect from which, or the commencement of the period (being a year
or such less period as is mentioned in the application) for which
the licence or permission is required.
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(2) Save as aforesaid, for every such licence or permission,
fees may be charged on such units and at such rates as may be
fixed by the panchayat provided that the rates shall not exceed the
maximum, if any, prescribed.
(3) Save as aforesaid, if orders on an application for any
such licence or permission are not communicated to the applicant
within thirty days or such longer period as may be prescribed in
any class of cases after the receipt of the application by the
executive authority of the village panchayat or the commissioner or
the chief executive officer. The application shall be deemed to have
been allowed for the period, if any, for which it would have been
ordinarily allowed and subject to the law, rules, by-Iaws and
regulations and all conditions ordinarily imposed.
(4) The acceptance of the pre-payment of the fee for any
such licence or permission shall not entitle the person making such
pre-payment to the licence or permission, but only to a refund of
the fee in case of refusal of the licence or permission.
(5) If an act, for which any such licence or permission is
necessary is done without such licence or permission, or in a
manner inconsistent with the terms of the licence or permission
obtained, then-
(a) the executive authority of the village panchayat or the
commissioner or the chief executive officer may by notice require
the person so doing such act to alter, remove, or as far as
practicable restore to its original state, the whole, or any part of
any property, movable or immovable, public or private affected
thereby, within a time to be specified in the notice; and further
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(b) if no penalty has been specially provided in this Act for
so doing such act the person so doing it shall be punishable with
fine not exceeding fifty rupees for such offence.
(6) Whenever any person is convicted of an offence in
respect of the failure to obtain any such licence or permission, the
Magistrate shall, in addition to any fine which may be imposed,
recover summarily and pay over to the panchayat the amount of the
fee chargeable for the licence or permission, and may, in his
discretion, also recover summarily and pay over to the panchayat
such amount, if any as he may fix as the costs of the prosecution.
Explanation:- The recovery of the fee for a licence or
permission under this subsection shall not entitle the person
convicted to the licence or permission.”
27.Therefore, the Tamil Nadu Panchayats Act,
1994 also does not provide any permission or licence to
erect permanent flagpoles of any political parties or
organizations.
The Tamil Nadu Panchayats (Prohibition against obstruction
in or over Public Roads, removal of encroachments, etc.,)
Rules, 2000:
28.It is relevant to extract the provision under Rule 15
of the Tamil Nadu Panchayats (Prohibition against obstruction in or
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over Public Roads, removal of encroachments, etc.,) Rules, 2000,
hereunder:
“15. Restriction on making hole, etc., on roads,
(1) The Village Panchayat or Panchayat Union
Council shall earmark certain places with ready made
holes for erecting poles in any public road vested with
them. (2) No person shall make a hole, or cause any
obstruction in any public road other than these places
specified in sub-rule (1) unless he previously obtains the
permission of the Executive Authority or Commissioner
and complies with such conditions as the Executive
Authority or Commissioner may impose.
(3) When such permission is granted, such person
shall, at his own expense, cause such hole or obstruction to
be sufficiently fenced and enclosed until the hole or
obstruction is filled up or removed and shall cause such
hole or obstruction to be sufficiently lighted during the
night. (4) If any person contravenes the provisions of this
rule, the Executive Authority or Commissioner shall fill up
the hole or remove the obstruction or cause the hole or
obstruction to be lighted, as the case may be, and may free
cover the cost of so doing from such person.”
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29.Therefore, the Tamil Nadu Panchayats
(Prohibition against obstruction in or over Public Roads,
removal of encroachments, etc.,) Rules, 2000 also does not
provide any permission or licence to erect permanent
flagpole.
The Tamil Nadu Highways Rules, 2003:
30.As per Section 26(2) of the Tamil Nadu Highways Act,
2001, the temporary structure can be permitted to be erected by
following the Tamil Nadu Highways Rules, 2003. Rules 6 to 9 of the
Tamil Nadu Highways Rules, 2003 are extracted hereunder:
“6. Permission to occupy highway land:-
Permission granted by the Highways Authority under
sub-section (2) of section 26 shall be in Form ’A’.
7.Conditions subject to which permission may be
granted under sub-section (2) of section 26:- Permission
under sub section(2) of section 26 shall be granted subject
to the following conditions:---
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(i) The structure to be erected or work to be carried
out shall be so executed as not to interfere with traffic on
the highways or the highway drainage;
(ii) The structure shall be erected in conformity with
the plan approved by the Highways Authority and shall not
be altered or extended without the prior written permission
of the Highways Authority. It shall not be used for any
purpose other than the one for which permission is granted;
(iii) The structure shall be constructed and
maintained to the satisfaction of the Highways Authority;
(iv) No trees on the highways land shall be removed,
cut or damaged or highway accessories or materials
removed or damaged without the prior written permission
of the Highways Authority and on payment of compensation
therefor, as determined by the Highways Authority;
(v)The applicant shall be solely liable for any loss or
injury sustained by any person or property as a result of
any carelessness negligence or misconduct of the applicant
or any of his employees in the erection, setting up, repair or
use of the structure on or overhanging on the highway land;
(vi)The applicant shall pay rent for the occupation of
or encroachment on a highway within the highway
boundaries at the rates indicated in the schedule;
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(vii) The applicant shall be liable to pay all taxes,
levies or assessments payable to Government or any local
authority in respect of the highway land occupied or
structure constructed or projected thereon;
(viii) The applicant shall deposit by way of security
with the Highway Authority such amount as may be fixed by
the Highways Authority which will be liable for forfeiture in
case of default in the payment of rent and other charges
payable to Government or contravention of any of the
conditions subject to which the permission is granted;
(ix) On the expiry of the period for which the
permission is granted, the land shall be vacated and
restored to its original condition and handed over to the
Highways Authority;
(x) The permission shall not be transferred to any
other person without the prior written permission of the
Highways Authority.
8. Rent to be charged for occupation of Highway
land:- The Highways Authority shall charge rent for
occupation of or encroachment on a highway within the
highway boundaries permitted under section 26 at the rates
specified in the Table in the Schedule.
9. Recovery of cost of removal of encroachment:-
Where the cost of the removal of encroachment or the cost
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of any protective work carried out in respect of any
encroachment is not paid, the cost shall be recovered by
disposing of the materials seized, by public auction.”
Thus, it is clear that even for temporary structure by way of
erecting flagpoles during political party meetings,
conferences, procession, dharna etc., the respective parties
have to pay rent for the occupation of or encroachment on
the Highway at the rates indicated in the schedule of the
Tamil Nadu Highways Rules, 2003. On expiry of the period for
which permission is granted, the land shall be vacated and restored
to its original condition and handed over to the Highways authority.
31.Therefore, no law permits to grant licence or
permission to erect permanent flagpole in public places and
the land belongs to respective Departments such as National
Highways, State Highways, Corporations, Municipalities and
Local Bodies. Even then, the authorities concerned without any
jurisdiction or power granted permission/licence to erect flagpoles of
respective political parties and other organizations in the public
place as well as the land belonged to the respective Departments
permanently.
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32.On perusal of the above statutory provisions, it would
clear that Section 26 of the Tamil Nadu Highways Act, 2001 permits
to grant permission to put up structure temporary in nature that too
considering the safety aid convenience of traffic with the
concurrence of the concerned District Collector for rent. But the
authorities concerned now grant permission/licence to erect
permanent flagpoles that too without collecting any rent in public
places. As a result, pedestrians as well as road users are put to
grave risk and peril. In the event of those flagpoles and other
temporary constructions likely to fall down, ultimately, it may be the
duty of the State to compensate them without putting any liability
and responsibility to the violators.
33.This Court dumped with the Writ Petitions claiming
compensation including the person who suffered injuries/fatal due
to falling down of flex board, hoardings and structure made
adjacent to the road. Therefore, it is for the authorities concerned to
ensure that no flagpoles are erected in public places permanently
since no law provides any provision to the authorities to grant
permission or licence to erect flagpoles by any political parties or
organizations.
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34.Further, during the general election for the Lok
Sabha, the Election Commission of India repeatedly issued various
directions to regulate the erection of flagpoles on the road margin
especially on the platforms or arches etc. However, those directions
were complied with for time being and thereafter, the authorities
concerned failed to comply with the directions. The Hon'ble Division
Bench of this Court, while pending the Public Interest Litigation Writ
Petition in W.P.No.17768 of 2016, dated 02.04.2019
[A.Radhakrishnan Vs. Chief Electoral Officer, Secretary to
Government and others], issued various directions and monitored
the compliance till passing of the final order. The Division Bench of
this Court also recorded the compliance report thereby removing
the unauthorizedly erected flagpoles of the political parties and
other organizations. However, as discussed supra, no law provides
any provision to grant permission or licence to erect permanent
flagpole to the authorities. Under the caption of 'Defacement of
Private Places', the Election Commission of India issued direction
that subject to any restrictions under any local law or any Court
orders in force, the political parties, candidates, their agents,
workers and supporters may put up banners, buntings flags, cut-
outs, on their own property, provided they do so on their own
volition, voluntarily and without any pressure from any party,
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organization or person, and provided further that these do not
cause any inconvenience in any manner to anyone else.
35.After considering all these issues, the Election
Commission of India issued the following directions to be followed
by the political parties, candidates, individuals and organizations
etc., during the election period:
“Defacement of Public Places:
4 (a) No wall writing, pasting of posters/papers or
defacement in any other form, or erecting/displaying of
cutouts, hoardings, banners, flags etc. shall be permitted on
any Government premise (including civil structures
therein). For this purpose a Government premise would
include any Govt. office and the campus wherein the office
building is situated.
(b) If the local law expressly permits or provides
for writing of slogans, displaying poster, etc., or erecting
cut-outs, hoardings, banners, political advertisement, etc.,
in any public place (as against a Govt. premise) on
payment or otherwise, this may be allowed strictly in
accordance with the relevant provisions of the law and
subject to Court orders, if any on this subject. It should be
ensured that any such place is not dominated/monopolized
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by any particular party(ies) or candidate(s). All parties and
candidates should be provided equal opportunity in this
regard.
(c) If there is a specifically earmarked place
provided for displaying advertisements in a public place,
e.g. bill boards, hoardings etc. and if such space is already
let out to any agency for further allocation to individual
clients, the District Election Officer through the municipal
authority concerned, if any, should ensure that all political
parties and candidates get equitable opportunity to have
access to such advertisement space for election related
advertisements during the election period.
Defacement of Private Places 5. (a) In the States
where there is no local law on the subject, and subject to
the restrictions under the law where there is a law,
temporary and easily removable advertisement materials,
such as flags and banners may be put up in private
premises with the voluntary permission of the occupant.
The permission should be an act of free will and not
extracted by any pressure or threat. Such banner or flag
should not create any nuisance to others. Photo-copy of the
voluntary permission in writing obtained in this connection
should be submitted to the Returning Officer within 3 days
of putting up the flags and banners in such cases in the
manner prescribed in sub para(c) below.
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(b) If the local law does not expressly permit wall
writing, pasting of poster, and similar other
permanent/semi-permanent defacement which is not easily
removable, the same shall not be resorted to under any
circumstances, even on the pretext of having obtained the
consent of the owner of the property. This will also apply
in the states where there is no local law on the subject of
prevention of defacement of property.
(c) Where the local law expressly permits wall
writings and pasting of posters, putting up hoardings,
banners, etc. on private premises with the owner’s
permission, the contesting candidates or the political
parties concerned shall obtain prior written permission
from the owner of the property and submit photocopies of
the same within 3 days to the Returning Officer or an
officer designated by him for the purpose, together with a
statement in the enclosed proforma (marked as
Annexure-2). The statement in such cases and in the cases
mentioned in sub-para (a) above should clearly mention
therein the name and address of the owner of the property
from whom such permission has been obtained together
with expenditure incurred or likely to be incurred for the
purpose. Nothing inflammatory or likely to incite
disaffection amongst communities shall be permissible in
such writings/display. The expenditure incurred in this
mode on specific campaign of candidate(s) shall be added
to the election expenditure made by the candidate.
Expenditure incurred on exclusive campaign for a party
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without indicating any candidate shall not be added to
candidate’s expenditure. The contesting candidate shall
furnish such information village/locality/town-wise, to the
Returning Officer, or the authorized officer within 3 days
of obtaining the requisite permission, for easy checking by
the Returning Officer or the Election Observer or any
officer connected with the conduct of elections.
(d) Subject to any restrictions under any local law or
any court orders in force, the political parties, candidates,
their agents, workers and supporters may put up
banners,buntings flags, cut-outs, on their own property,
provided they do soon their own volition, voluntarily and
without any pressure from any party, organization or
person, and provided further that these do not cause any
inconvenience in any manner to anyone else. If such
display of banners, flags etc. aims to solicit vote for any
particular candidate, then the provisions of Section 171H
of the IPC would be attracted and would have to be
followed. Section 171H of the IPC stipulates that whoever
without the general or special authority in writing of a
candidate incurs or authorizes expenses on account of the
holding of any public meeting, or upon any advertisement,
circular or publication, or in any other way whatsoever for
the purpose of promoting or procuring theelection of such
candidate, shall be punished with fine which may extend to
five hundred rupees: Provided that if any person having
incurred any such expenses not exceeding the amount of
ten rupees without authority obtains within ten days from
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the date on which such expenses were incurred the
approval in writing of the candidate, he shall be deemed to
have incurred such expenses with the authority of the
candidate.”
The above directions were complied with during the election.
However, the erection of flagpoles by political parties and other
organizations is not prohibited so far, although no law provided or
provision to grant permission or licence to erect flagpoles by any
political parties or other organizations.
36.Thus, it is clear that no permission or licence
can be granted by any authority to erect a flagpole in public
places or in private places. Therefore, the erection of
flagpoles is unauthorized and illegal by any political parties
and organizations. Therefore, all the flagpoles erected all
over Tamil Nadu in the rural or urban areas have to be
removed forthwith.
37.Since all public streets and roads vest with the State
or the local bodies, as the case may be, as trustees on behalf of the
public. It is reported in AIR 1953 Madras 279 in the case of
C.S.S.Motor Service, Tenkasi Vs. The State of Madras,
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represented by the Secretary to the Government of Madras,
Home Department, wherein it is held that “all public streets and
roads vest in the State but that the State holds them as trustee on
behalf of the public. The members of the public are entitled as
beneficiaries to use them as a matter of right and this right is
limited only by the similar rights possessed by every other citizen to
use the pathways. The State as trustees on behalf of the public is
entitled to impose all such limitations on the character and extent of
the user as may be requisite for protecting the rights of the public
generally”. Therefore, any authority has no power to grant
permission to anybody to construct anything permanent in public
places.
38.Further, the footpaths or pavements or public
properties are intended to serve the convenience of the general
public. They are not laid for private use and indeed, they are used
for a private purpose frustrates the very object for which they are
carved out from portions of public streets. The main reason for
laying out pavements is to ensure that the pedestrians are able to
go with a reasonable measure of safety and security. Therefore, no
one has right to make use of public property for a private purpose
without the requisite authorization, as held by the Hon'ble Supreme
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Court of India in the case of Olga Tellis Vs. Bombay Municipal
Corporation reported in (1985) 3 SCC 545 while considering the
rights of pavement dwellers, eviction and removal whether violated
Articles 19(1)(e) and 21 of the Constitution of India.
39.The said Judgment is clearly applicable to the
case on hand. Any public place such as corner of the street,
pavement, junction of the road, junction, bus stop and other
public use places are meant for the usage of general public.
Therefore, no one has any right to erect any flagpoles by
obstructing public users. That apart, there are several
criminal cases registered due to the erection of flagpoles of
respective political parties while celebrating their leader's
birthday, death anniversary, during election, celebration of
their elected members of the Legislative Assembly and Lok
Sabha, while choosing the place for erection of their
flagpoles and with regard to their flagpoles height. All the
cases are pending for investigation on the file of its
respective police stations. Therefore, the authorities
themselves granted permission to erect flagpoles that too
without any power/jurisdiction and it led to all problems
including criminal cases.
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40.Further, the Hon'ble Supreme Court of India dealt
with the issue of encroachment of pavements of roads, the rights of
the encroachers in the case of Ahamedabad Municipal
Corporation Vs. Nawab Khan Gulab Khan reported in (1997) 11
SCC 121 and the relevant paragraphs 8, 10 & 22 are extracted
hereunder:
"8. It is for the court to decide in exercise of its
constitutional power of judicial review whether the
deprivation of life or personal liberty in a given case is by
procedure which is reasonable, fair and just or it is otherwise.
Footpath, street or pavement are public property which are
intended to serve the convenience of the general public. They
are not laid for private use and indeed, their use for a private
purpose frustrates the very object for which they are carved
out from portions of public roads. The main reason for laying
out pavements is to ensure that the pedestrians are able to go
about their daily affairs with a reasonable measure of safety
and security. That facility, which has matured into a right of
the pedestrians, cannot be set at naught by allowing
encroachments to be made on the pavements. The claim of the
pavement dwellers to construct huts on the pavement or road
is a permanent obstruction to free passage of traffic and
pedestrians' safety and security. Therefore, it would be
impermissible to permit or to make use of the pavement for
private purpose. They should allow passing and repassing by
the pedestrians. No one has a right to make use of a public
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property for their private purpose without the requisite
authorisation from the competent authority. It would,
therefore, be but the duty of the competent authority to remove
encroachments on the pavement or footpath of the public
street obstructing free flow of traffic or passing or repassing
by the pedestrians.
10. The Constitution does not put an absolute embargo
on the deprivation of life or personal liberty but such a
deprivation must be according to the procedure, in the given
circumstances, fair and reasonable. To become fair, just and
reasonable, it would not be enough that the procedure
prescribed in law is a formality. It must be pragmatic and
realistic to meet the given fact-situation. No inflexible rule of
hearing and due application of mind can be insisted upon in
every or all cases. Each case depends upon its own backdrop.
The removal of encroachment needs urgent action. But in this
behalf what requires to be done by thecompetent authority is
to ensure constant vigil on encroachment of the public places.
Sooner the encroachment is removed when sighted, better
would be the facilities or convenience for passing or repassing
of the pedestrians on the pavements or footpaths facilitating
free flow of regulated traffic on the road or use of public
places. On the contrary, the longer the delay, the greater will
be the danger of permitting the encroachers claiming
semblance of right to obstruct removal of the encroachment. If
the encroachment is of a recent origin the need to follow the
procedure of principle of natural justice could be obviated in
that no one has a right to encroach upon the public property
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and claim the procedure of opportunity of hearing which
would be a tedious and timeconsuming process leading to
putting a premium for high-handed and unauthorised acts of
encroachment and unlawful squatting. On the other hand, if
the Corporation allows settlement of encroachers for a long
time for reasons best known to them, and reasons are not far
to seek, then necessarily a modicum of reasonable notice for
removal, say two weeks or 10 days, and personal service on
the encroachers or substituted service by fixing notice on the
property is necessary. If the encroachment is not removed
within the specified time, the competent authority would be at
liberty to have it removed. That would meet the fairness of
procedure and principle of giving opportunity to remove the
encroachment voluntarily by the encroachers. On their
resistance, necessarily appropriate and reasonable force can
be used to have the encroachment removed. Thus considered,
we hold that the action taken by the appellant-Corporation is
not violative of the principle of natural justice.
22. Empirical study of urban and rural population in
India discloses that due to lack of civic facilities and means of
livelihood people from rural areas constantly keep migrating
to the urban areas resulting in mushroom growth of slums and
encroachment of the pavements/footpaths etc. Every municipal
corporation has statutory obligation to provide free flow of
traffic and pedestrians' right to pass and repass freely and
safely; as its concomitance, the corporation/municipality have
statutory duty to have the encroachments removed. It would,
therefore, be inexpedient to give any direction not to remove,
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W.P(MD)Nos.29035, 29217 & 30354 of 2024
or to allow the encroachments on the pavements or footpaths
which is a constant source of unhygienic ecology, traffic
hazards and is risk-prone to the lives of the pedestrians. It
would, therefore, be necessary to permit the Corporation to
exercise the statutory powers to prevent encroachment of the
pavements/footpaths and to prevent construction thereon. As
held earlier, the Corporation should always be vigilant and
should not allow encroachments of the pavements and
footpaths. As soon as they notice any encroachment they
should forthwith take steps to have them removed and not
allow them to settle down for a long time. It is stated in their
affidavit that they are giving 21 days' notice before taking
action for the ejectment of encroachers. That procedure, in
our view, is a fair procedure and, therefore, the right to
hearing before taking action for ejectment is not necessary in
the fact-situation. But the Commissioner should ensure that
everyone is served with a notice and as far as possible by
personal service and if it is not possible for reasons to be
recorded in the file, through affixture of the notice on the
hutment, duly attested by two independent panchas. This
procedure would avoid the dispute that they were not given
opportunity; further prolongation of the encroachment and
hazard to the traffic and safety of the pedestrians."
Therefore, the erection of flagpole is nothing but rank
encroachment. The removal of encroachment needs urgent
action by the concerned authorities.
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W.P(MD)Nos.29035, 29217 & 30354 of 2024
41.The Hon'ble Division Bench of this Court further held
in W.P.No.17768 of 2016, dated 02.04.2019
[A.Radhakrishnan Vs. Chief Electoral Officer, Secretary to
Government and others], which reads as follows:
“17. From the submissions and the status
reports submitted by the 32 District Collectors in the State of
Tamil Nadu, two flagpoles in Thiruvannamalai are not
removed, as they were erected with the permission of the
local body. Three poles are not removed, as there were
covered by Court orders and all other flagpoles, erected
without permission of the competent authorities, have been
removed. It is alarming that as against several thousands of
flag poles in the State only two poles have been erected with
permission and the remaining three covered, by Court orders.
Ever since action has been taken for removal of unauthorised
poles, none appeared before the authorities or before us to
contend, and substantiate that there is any valid permission
for erection of such poles. Illegality in erection of poles
without obtaining permission from the competent authorities,
is per se apparent. Question to be considered on the prayer
sought for is whether the illegality in erecting the poles,
across the State, without permission from the competent
authorities, whomsoever under the above Statutes, be allowed
to be resurrected, after the declaration of elections. Nobody
has a right to encroach upon properties, which vest with the
Statutory authorities.
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W.P(MD)Nos.29035, 29217 & 30354 of 2024
18. Measures taken during elections, on the basis of
Code of Conduct, alone would not serve the purpose, in the
light of the statutory provisions extracted supra. There should
be statutory compliance, in the matter of erection of poles. So
also discharge of statutory duties cast upon the authorities not
to permit erection of poles without adherence to the
provisions of the Statute. Departure from law should not be
permitted. Any encroachment on a public property, road,
street, etc., would eventually lead to congestion of traffic,
inconvenience to the user of roads, streets and such other
places vested with the authorities. Object of the statutory
provisions quoted supra, is not to allow any unauthorised
occupation of such places and in the case on hand, erection of
flag poles. Local Bodies, Government, and Highways
Department are duty bound to initiate antiencroachment
measures and continue to do so. At this juncture, we deem it
to observe that it is endeavour of this Court is to state there
can be poles, but only with the permission of the competent
authorities.”
42.Thus, it is clear that the authorities concerned
should not permit the erection of poles permanently without
adherence to the provisions of the statute. Hence, the
erection of flagpoles with permission or without permission
amounts to clear encroachment on public property, roads,
streets etc. It leads to congestion of traffic and
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W.P(MD)Nos.29035, 29217 & 30354 of 2024
inconvenience to the users of roads, streets and other places
vested with the authorities. Further, there is law and order
problem, while celebrating birthday, death anniversary of
eminent leaders by hoisting flag by political parties and also
blocking the entire road traffic and causing inconvenience to
general public. There is competition between the political
parties and other organizations in respect of their flagpost
height. They want to erect their respective flagpole higher
than the other poles. In this regard, 114 F.I.Rs are pending
for investigation on the file of various police stations in all
over Tamil Nadu. Therefore, they should not be permitted to
erect their flagpole permanently in the public places. When
no act provides any permission/licence to erect flagpole
permanently in the public place and land belongs to National
Highways, State Highways, Corporations, Municipalities and
Local Bodies, the police personnel and revenue department
have no power/jurisdiction to issue No Objection Certificate
to erect permanent flagpole.
43.In view of the above, this Court issues the following
directions:
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W.P(MD)Nos.29035, 29217 & 30354 of 2024
(i) All the political parties and all
organizations such as Community, Religion,
Association etc., are directed to remove their
flagpoles which are erected permanently in all
over Tamil Nadu in the public places and land
belongs to the National Highways, State Highways,
Corporations, Municipalities, Local Bodies and
other Departments, within a period of twelve
weeks from today, failing which, the authorities
concerned are directed to remove the flagpoles by
issuing two weeks notice and in accordance with
law. After removal of flagpoles, the authorities
concerned are directed to recover the cost of
removal of flagpoles from the respective political
parties.
(ii) All the authorities concerned shall
not grant any permission to erect flagpoles
permanently in the public places and land belongs
to the National Highways, State Highways,
Corporations, Municipalities, Local Bodies and
other Departments by the political parties and
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W.P(MD)Nos.29035, 29217 & 30354 of 2024
other organizations such as Community, Religion
or any Association in the public place and the land
owned by the Department of National Highways,
State Highways, Corporation, Municipality and
Local Bodies.
(iii) The political parties and other
organizations are permitted to erect their
permanent flagpoles in their own land that too
after obtaining necessary permission from the
authority concerned. In this regard, the State
Government is directed to frame Rules for erection
of flagpoles in the private land.
(iv) The authorities concerned can
permit the political parties to erect their flagpoles
temporarily without causing any damage to the
land during their meetings, election campaign,
conferences, procession, dharna and functions
etc., on payment of rent in advance, as may be
prescribed, in accordance with law.
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W.P(MD)Nos.29035, 29217 & 30354 of 2024
(v) The authorities must ensure that
after the period of permission/licence to erect
temporary flagpole, the person who was granted
permission/licence shall restore the public places
to its original position by cleaning and filling up
the holes, if any. If any damage caused, the cost to
be paid to the concerned authorities.
(vi) The Head of the Department of
concerned authorities and all District Collectors
must ensure that the concerned authorities shall
comply with the above directions and monitor
from time to time.
(vii) The Registry is directed to circulate
this order to all the District Collectors for strict
compliance. The Chief Secretary shall ensure
compliance of this order.
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W.P(MD)Nos.29035, 29217 & 30354 of 2024
44.In view of the above directions, this Court finds no
infirmity or illegality in the order passed by the second respondent,
dated 29.11.2024 and accordingly, W.P(MD)No.29035 of 2024 is
dismissed.
45.In view of the above directions, the direction sought
for in W.P(MD)Nos.29035 & 30354 of 2024 cannot be granted and
accordingly, W.P(MD)Nos.29035 & 30354 of 2024 are also
dismissed. There shall be no order as to costs. Consequently,
connected Miscellaneous Petitions are closed.
27.01.2025
NCC : Yes
Index : Yes
Internet : Yes
ps
Note:- (i) Issue Order Copy on or before 27.01.2025.
(ii) The Registry is directed to circulate
this order to all the District Collectors
for strict compliance. The Chief Secretary
shall ensure compliance of this order.
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W.P(MD)Nos.29035, 29217 & 30354 of 2024
Copy To:
1.The Chief Secretary,
Government of Tamil Nadu,
Fort St. George,
Secretariat,
Chennai.
2.All the District Collectors.
To
1.The Divisional Engineer,
Highways Department,
Construction and Maintenance,
Near Thamarai Thotti,
K.Pudur, Madurai - 625 002.
2.The Assistant Divisional Engineer,
Highways Department,
Construction and Maintenance,
Sub-Division - Madurai South,
Near District Court,
Madurai - 625 002.
3.The Assistant Engineer,
Highways Department,
Construction and Maintenance,
Sub-Division Madurai South,
Near District Court,
Madurai - 625 002.
4.The Tahsildar,
Thiruparankundram Taluk,
Madurai.
5.The Assistant Commissioner of Police,
Thidir Nagar Circle,
S.S.Colony,
Madurai - 625 016.
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W.P(MD)Nos.29035, 29217 & 30354 of 2024
6.The Inspector of Police,
C-3, Subramaniyapuram Police Station,
Madurai - 625 003.
7.The Commissioner,
Madurai Corporation,
Arignar Anna Maligai,
Madurai.
8.The District Revenue Officer,
Collectorate Campus,
Madurai.
9.The Revenue Divisional Officer,
Madurai North Division,
Madurai District.
10.The Tahsildar,
Madurai North Taluk Office,
Madurai District.
11.The Assistant Commissioner,
Madurai Corporation,
Madurai North Division No.II,
Race Course Road,
Madurai.
12.The Assistant Commissioner of Police,
Sellur Circle,
Madurai District.
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W.P(MD)Nos.29035, 29217 & 30354 of 2024
13.The Inspector of Police,
D3 Koodal Nagar Police Station,
Madurai.
14.The District Collector,
Madurai District,
Madurai.
15.The Tahsildar,
Taluk Office,
Periayur Taluk,
Madurai District.
16.The Inspector of Police,
Saptur Police Station,
Madurai District.
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W.P(MD)Nos.29035, 29217 & 30354 of 2024
G.K.ILANTHIRAIYAN, J.
ps
Pre-Delivery Order made in
W.P(MD)Nos.29035, 29217 & 30354 of 2024
27.01.2025
https://www.mhc.tn.gov.in/judis
