IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.03.2025 CORAM :

THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD Writ Petition No.104 of 2016 and W.M.P.No.49 of 2016 P.L.Selvakumar, Hereditary Trusteee, Arulmigu Kallipatti Kandasamy Temple, Kalipatti, Namakkal District. ... Petitioner Vs.

1.The Director of Town Panchayat, Kurazhagam, Chennai.

2.The District Collector, Namakkal.

3.The Executive Officer, Mallasamuddram Selection Grade Town Panchayat, Mallasamodram, Namakkal District.

4.The Divisional Engineer, Highways Department, Mohanur Road, Namakkal. … Respondents PRAYER: Writ Petition filed under Article 226 of Constitution of India, praying for issuance of Writ of Certiorari calling for the records relating to the auction notice of the 3^rd respondent Na.Ka.No.702/2015/A1 dated

29.12.2015 and quash the same.

For Petitioner : Mr.S.Silambanan, Senior Counsel for Mr.S.Karthikei Balan For Respondents 1,2 & 4 : M/s.P.Aishwarya, Government Advocate For Respondent 3 : Mr.S.Rajesh, Government Advocate

O R D E R

The petitioners have filed this petition to call for the records relating to the auction notice of the 3^rd respondent Na.Ka.No.702/2015/A1 dated

29.12.2015 and quash the same.

2. The case of the petitioner is that he is a hereditary trustee of Arulmigu Kalipatti Kandaswamy Temple and he seeks to quash an auction notice issued by the Mallasamudram Selection Grade Town Panchayat/third respondent vide Na.K.No.702/2015/A1, dated 29.12.2015. The auction was conducted to lease lands adjacent to state highways for setting up temporary shops during the Thaipoosam festival. Without obtaining prior permission from the State Highways, the third respondent has issued the said notice.

Challenging the aforesaid auction notice dated 29.12.2015, the petitioner has come forward with the present writ petition.

3. Learned counsel for the petitioner would submit that the third respondent has no power/authority to auction the lands, which belongs to the Highways Department, as such powers rest solely with the legislature.

4. Learned counsel for the petitioner would further submit that at the time of admission, this Court granted an order of interim stay on 18.01.2016 and subsequently it was made absolute and the same was in force till date.

5. Learned counsel for the petitioner further relied on the judgment passed by the Division Bench of this Court in W.A.No.263 of 1998 dated 05.08.1988, reported in 1998 (II) CTC 327. For better appreciation and understanding, the relevant paragraphs of the judgment is extracted hereunder:

“26. There could be no levy of toll or tax on vehicles entering the limits of the first respondent as it is not a fee collected towards hating charges of vehicles in a public halting place or cart stand. Hence the reliance placed on Section 270-

B is of little assistance to the first respondent.

27. No toll also could be levied or collected by the first respondent as there has been no authorisation by the State legislature to levy toll on the vehicles which enter the limits of the first respondent.

31. Article 265 of the constitution provides that no tax shall be levied or collected except by authority of law. Article 256 of the constitution provides that not only levy but also the collection of a tax must be under the authority of valid enactment, which falls within the legislative competency of the legislature imposing the taxes.

32. In the light of the above discussion,s this Court finds no substance in the contentions raised on behalf of the respondents and this Court further holds that the levy and collection of toll, kist or fee, whatever name by which it is called by the first respondent on all motor vehicles, which enter its limits is illegal and without authority of law. This Court is unable to sustain the contention of the first respondent as no tax could be levied or collected by the first respondent except by authority of law.”

6. Learned Government Advocate appearing for the respondents 1, 2 &

4 has filed a counter affidavit