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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
K.Karuppasamy – Appellant
Versus
The Divisional Engineer, Highway Authority – Respondent
WP(MD)Nos.20905, 20906, 21137, 22945 of 2015 and MP(MD)Nos.1 (4), 2 of 2015 and WMP(MD)Nos.19 to 22 of 2016
Decided on : 27-03-2024
JUDICIAL REVIEW - Writ of Certiorari - Tamil Nadu Highways Act, 2001, Sections 2(13), 5(2), 26 - The court examined the jurisdiction of the Assistant Engineer in cancelling permissions granted for temporary stalls on highway margins, emphasizing that only the Highway Authority, defined under the Act, has the authority to issue such orders. The court highlighted the need for compliance with safety regulations and the necessity of obtaining No Objection Certificates from relevant authorities. The court's decision was influenced by the interpretation of the Act's provisions regarding temporary permissions and the importance of pedestrian safety.
Fact of the Case:
The petitioners, who operated temporary stalls along the Virudhunagar Madurai Highways, challenged the cancellation of their permissions by the Assistant Engineer, arguing that only the Divisional Engineer, as the Highway Authority, had the jurisdiction to issue such orders. They contended that the cancellation was discriminatory and violated their rights.
Finding of the Court:
The court found that the Assistant Engineer acted beyond his jurisdiction in cancelling the permissions, as only the Divisional Engineer, designated as the Highway Authority, had the authority to do so. The court also noted the lack of proper adherence to safety regulations and the absence of necessary No Objection Certificates.
Issues: 1. Whether the Assistant Engineer had the jurisdiction to cancel the permissions granted for the stalls. 2. Whether the cancellation of permissions was discriminatory and violated the rights of the petitioners.
Ratio Decidendi: The court held that the Assistant Engineer was not the Highway Authority as defined under the Tamil Nadu Highways Act, and thus lacked the authority to cancel the permissions. The court emphasized the need for compliance with the Act's provisions regarding temporary permissions and the importance of pedestrian safety.
Final Decision: The court set aside the impugned orders of cancellation, directing the Divisional Engineer to issue notices to the petitioners and to review the conditions of existing shops in the district, ensuring compliance with the relevant laws.
ORDER :
B.PUGALENDHI, J.
PRAYER: Petition filed under Article 226 of the Constitution of India seeking issuance of a Writ of Certiorari calling for the records of the impugned proceedings of the second respondent in Ku.No.42/2015/2.Po, dated 13.11.2015 and quash the same.
PRAYER: Petition filed under Article 226 of the Constitution of India seeking issuance of a Writ of Certiorari calling for the records of the impugned proceedings of the second respondent in Ku.No.42/2015/2.Po, dated 13.11.2015 and quash the same.
PRAYER: Petition filed under Article 226 of the Constitution of India seeking issuance of a Writ of Certiorarified Mandamus calling for the records of the impugned proceedings of the second respondent in Ku.No. 42/2015/Oo.Po, dated 13.11.2015 and Ku.No.Permission/2015/Ee.Ni.Va., dated 13.11.2015, quash the same and consequently, directing the first respondent to renew the petitioner's license vide R.C.No.2208/2014/D4 dated 14.11.2014 for conducting a small sweet stall situated at Madurai Virudhunagar Road within Virudhunagar Municipality Limit adjacent to District Registrar Office Compound on the basis of the petitioner's application dated 11.11.2015.
PRAYER: Petition filed under Article 226 of the Constitution of India seeking issuance of a Writ of Certiorari calling for the records of the impugned proceedings of the second respondent in Ku.No.42/2015/Oo.Po, dated 13.11.2015 and the consequential proceedings of the third respondent in Ku.No.42/2015/Oo.Po, dated 28.11.2015 and quash the same.
The petitioners are licensees, who run temporary stalls/shops in Virudhunagar Madurai Highways. The first respondent/Divisional Engineer, by his proceedings of the year 2010, temporarily permitted the petitioners to occupy the Highways land to have stalls/shops, subject to certain conditions and on payment of deposit amount. The petitioners were also permitted to continue for several years. While so, the second respondent has initiated a proceedings, issued show cause notice and passed the impugned orders, cancelling the permission granted to the petitioners on the road margin, stating that they are causing nuisance to the traffic and also violated the terms and conditions. Aggrieved over the same, the petitioners have filed these writ petitions.
2. Learned Counsel for the petitioners attacked the impugned orders on the ground of jurisdiction of the second respondent. According to him, the Highway Authority is competent to issue and cancel the permission. Highway Authority is defined under Section 2(13) of the Tamil Nadu Highways Act, 2001 [hereinafter referred to as 'the Act'], as that of an Officer appointed under Sub-Section 2 of Section 5 of the Act. The Divisional Engineer, Highways Department, is the Highway Authority for the division as per Section 5(2) of the Act. The first respondent/Divisional Engineer is the designated Highway Authority for Virudhunagar Division.
The order of permission was also issued by the first respondent/Divisional Engineer, the Highway Authority. While so, the impugned order has been passed by the Assistant Engineer, who is not the Highway Authority.
3. Learned Counsel has also attacked the impugned orders on the ground of discrimination that it has been passed selectively as against the petitioners alone. He has also relied on certain photographs in the typed set of papers and further submitted that some of the petitioners are physically handicapped persons. Therefore, he prayed for appropriate orders.
4. Since an allegation has been made as against the respondents that the impugned orders have been passed selectively, this Court directed the respondents to file a report as to the number of such shops allotted in the Virudhunagar District and the conditions of the same.
5. Pursuant to the same, the second respondent/Assistant Engineer has filed a report and the same is extracted as under:-
b) The
Only the designated Highway Authority has the jurisdiction to grant or cancel permissions for temporary stalls on highway margins, and such actions must comply with safety regulations and proper proc....
The court established that street vendors must operate within designated vending zones as determined by the Town Vending Committee, and that licenses issued without proper authority are invalid. The ....
Any failure on part of the designated authorities, contractor, consultant or concessionaire in maintaining the safety standards of public roads will attract the penal consequences provided under Sect....
The State Government does not have the authority to grant temporary permits after withdrawing the scheme under which the permits were granted and the transport authorities must follow the procedure l....
The grant of permits to private operators on nationalized routes is prohibited under the scheme framed under Chapter IVA of the Motor Vehicles Act, 1939.
The right to carry on trade or profession is a fundamental right under Article 19(1)(g) of the Constitution of India, and any infringement of this right can be challenged through a writ petition.
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