Satish K. Agnihotri, J. & K.K. Sasidharan, J.

Introductory:

1. The Governor of Tamil Nadu announced the policy decision taken by the Government of Tamil Nadu to erect a statue in memory of the versatile Actor late Padmabushan Sivaji Ganesan, opposite to the office of the Director General of Police at Kamarajar Salai, in his address in the Legislative Assembly on 24 May 2006. However, while erecting the statue the concerned authorities have ignored the place indicated in the address given by the Governor and erected it on the middle portion of an arterial road (in fact not near D.G.P. Office but opposite to Queen Mary's College) giving rise to a dispute and dragging the name of an artist of repute to the midst of a litigation.

A Brief Backdrop:-

2. This pro bono publico petition was originally filed for a direction, forbearing the Government of Tamil Nadu from in any way permitting or installing the statue of late Sivaji Ganesan, in the three road junction of Kamarajar Salai Radhakrishnan Salai, opposite to Gandhi Statue on the National Highways and a consequential direction to the authorities to provide an alternative place to install the statue.

3. The statue was installed on 12 July 2006. The petitioner therefore amended the prayer and now seeks a direction to remove the statue from its present location.

4. The writ petition was originally filed by a Gandhian, who took part actively in the freedom movement. The petitioner in his affidavit filed in support of the writ petition contended that the statue of Mahatma Gandhi at Marina was the creation of a well known sculptor. The statue is a centre of attraction.

5. The proposal to erect the statue of Sri. Sivaji Ganesan was opposed by the petitioner on two grounds, viz., that it would obstruct the view of Gandhi Statue and that it would violate the undertaking given by the Government of Tamil Nadu before the Supreme Court that no statue or structure would be erected on public road. During the currency of the writ petition, the writ petitioner died and his son was recognised as the legal representative to continue the litigation.

6. The Government wanted to unveil the statue on 21 July 2006. In view of the urgency, the writ petition was taken up for consideration on 19 July 2006. The Division Bench found that the State of Tamil Nadu has given an undertaking before the Supreme Court that no temporary or permanent structure which affects the free flow of traffic be allowed on main roads. In view of the undertaking given by the State Government, the learned Advocate General took time to approach the Supreme Court with a clarification application. The Division Bench while adjourning the matter by four weeks (so as to enable the State to approach the Supreme Court), made it clear that all actions taken by the Government henceforth would be subject to the orders of the Supreme Court. Thereafter the State moved the Supreme Court with a clarification application. The Supreme Court refused to clarify the order.

7. The Assistant Commissioner of Police (Traffic), Mylapore, pursuant to the order dated 23 October 2013 filed an affidavit indicating that on account of the location of statue the visibility of the motorists, who are intending to take right turn to Dr. Radhakrishnan Salai from Kamarajar Salai would be affected. The traffic Police opined that shifting the statue from the present location would help easy flow of traffic.

Submissions:

8. The learned Senior Counsel for the petitioner contended that the Division Bench has already passed an order dated 19 July 2006 holding that the affidavit filed before the Supreme Court in K.K.Road Merchants v. District Collector (2004) 13 SCC 60 would apply equally to cases of encroachment, obstruction, etc., made on the road maintained by the Corporation and the local authorities. The clarification petition filed by the State has already been disposed of by the Supreme Court pointing out that no such clarification is necessary. The issue rais