This Writ Petition has been filed for issuing a Writ of Mandamus directing the respondents 1 to 5 not to grant permission to the sixth respondent to conduct the Arumanai Christmas Festival at Pallivilai near the Arumanai Police Station, in Arumanai Via Kulasekaram Road, Nagercoil Road on 22nd and 23rd December, 2017 by considering the petitioner's representations dated 06.12.2017 and 12.12.2017.
2.The petitioner states that he is a planter owning rubber garden in Kaliyal, Kanyakumari District. It is stated that the petitioner's house is situated at the road namely Arumanai via Kulasekaram to Nagercoil connecting the rubber estates in Kulasekaram and other estate areas. It is also stated that estate labourers use this road to reach their houses from various estates. It is further stated that the road is a busy road and there is bus service once in fifteen minutes. Apart from the bus service, there is also heavy vehicular traffic in the road. It is further stated that the heavy vehicular traffic is diverted through this road because of the construction of a new fly-over in Marthandam. Further, it is stated that the road is a narrow panchayat road of 15 feet width and this is the only road from Marthandam to Arumanai, Kaliyal and other estate areas. Even the sixth respondent is residing in the same road.
3.It is the case of the petitioner that the sixth respondent is making elaborate arrangements for conducting Arumanai Christmas festival at Pallivilai near the Arumanai Police Station in Arumanai via Kulasekaram road. It is further contended that the sixth respondent has already erected huge flex banners advertising Arumanai Christmas festival to be conducted on 22nd and 23rd December, 2017 in Arumanai junction and other junctions in the road. The prime objections of the petitioner to conduct the function at Pallivilai junction are as follows:
(a) the road is a narrow road with a width of less than 20 feet and allowing the sixth respondent to conduct the Christmas festival in the place will block the entire traffic in the busy road.
(b) the use of the loud speaker and mike system in the programme will cause the worst inconvenience to the public and the local residents including the petitioner.
(c) the examinations for the school students residing in the said area have been postponed to 18th to 23rd December, 2017 and because of the programme the students will not be able to concentrate their studies.
4.Though in the affidavit filed in support of the Writ Petition, the petitioner's main objection was only in relation to public grievance in terms of inconvenience with reference to several aspects, it is to be pointed out that the petitioner appears to have filed this petition originally as a public interest litigation. It appears that they have presented it in the present form because of some objections raised by the office. Since the petitioner is a resident of the same locality and his grievances are common and genuine, this Court is inclined to consider the case on merits.
5.The learned Senior Counsel appearing for the sixth respondent has raised preliminary objections in the following lines:
(a) First of all, the petitioner has filed this Writ Petition due to personal motive. The function is being conducted for the past 19 years in the same place without any hindrance to the traffic or to the general public. No complaint was received from any general public for the past 19 years.
(b) The petitioner was one of the coordinators of this function till last year in the same place. It is only because the petitioner was not included as a coordinator this year to conduct the function, the petitioner has filed this Writ Petition with an ulterior motive to stall the function.
(c) A Writ Petition was earlier filed for similar relief as a public interest litigation and the matter is subjudised before this Court and the petitioner, who is not able to get any interim order in the earlier petition, has approached this Court with the present Writ Petition suppressing the fact about the pendency of another Writ Petition.
6.The learned Senior Counsel appearing for the petitioner relied upon the judgment of the Hon'ble Supreme Court in the case of K.K.Road Merchants v. District Collector, Tamil Nadu and another reported in (2004) 13 SCC 61 wherein the Hon'ble Supreme Court had an occasion to observe as follows:
?2.When the matter came up for hearing this Court directed the State of Tamil Nadu to explain as to why orders should not be passed, not to permit the blocking of any main street/road. Pursuant to the direction of this Court, the Secretary to Government, Home Department, State of Tamil Nadu filed an affidavit. Relevant portion of the affidavit reads as follows:
?I respectfully submit that in pursuance of the interim orders dated 29-7- 2002 of this Hon'ble Court in the above matter directing to take instructions to the effect that no temporary or permanent structure shall ever be allowed on a main road thereby blocking free movement of traffic, the subject was considered by the Council of Ministers of the State of Tamil Nadu in its meeting held on 19-9-2002, in which it was decided that no temporary or permanent structure which affects free flow of traffic be allowed on main roads. A copy of the minutes of the said meeting of the Council of Ministers is in Annexure I.
It is respectfully submitted that section 220 of the chennai city municipal corporation act, 1919 (Tamil Nadu act 4 of 1919)inter alia provides that no one shall build any wall or erect any fence or other obstruction or projection or make any encroachment in or over any street, the control of which is vested in the Corporation. Further, Section 222 of the said Act provides that the Commissioner may by notice require the occupier to remove encroachment or obstruction in or over any street the control of which is vested in the Corporation. Similar provisions are also available in other Acts relating to the Municipal Corporations of Madurai, Coimbatore, Tiruchirapalli, Salem and Tirunelveli in Tamil Nadu. It is also submitted that section 180 of the tamil nadu district municipalities act, 1920 (tamil nadu act 5 of 1920) provides that 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 provided in the said Act. Section 180-A of the said Act provides that all streets vested in or to be vested in or maintained by a municipal council shall be open to persons of whatever caste or creed. Section 182(1) of the said Act provides that the 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. Relevant extracts of the said provisions of the said Acts are in Annexure II.?
7.He relied upon yet another judgment of the Division Bench of this Court in the case of N.Karthick, Member of Legislative Assembly, Coimbatore v. The Government of Tamil Nadu, Rep. by its Chief Secretary, Chennai and others reported in CDJ 2017 MHC 7293 wherein the Hon'ble Division Bench of this Court has held as follows:
?7.All arches, display boards, hoardings, placards and banners with poles or frames, etc., fixed to and / or dug into the ground, which abut into highways, public streets and pedestrian pavements shall forthwith be removed. No poles or frames or structures for arches, boards, placards, hoardings, display boards or banners shall be erected on any highway, public road, public passage or pedestrian pathway or pavement. Holes caused on pavements and roads by reason of erection of frames, poles, structures, placards, hoardings, displaying boards, banners, etc., shall forthwith be repaired. This order will not, however, prevent the respondents from erecting and / or permitting the erection / setting up of display boards, hoardings, placards and banners, which do not abut into or obstruct pavements, pedestrian pathways, public streets and highways, strictly in accordance with law. For example, display boards, placards, etc., may be installed on vacant land, buildings and / or beyond the edge of the pavement / pedestrian pathway running parallel to the pavement and / or road with the requisite approvals.?
8.It is pointed out by the learned Senior Counsel appearing for the petitioner that the sixth respondent has erected arches and big wooden tower which is likely to be fitted with decorative materials, serial sets and lights, etc. The photographs shown by the learned Senior Counsel appearing for the petitioner give an indication that the stage proposed to be put up by the sixth respondent is likely to block the road and it is very difficult to allow regular traffic in the crowd assembled in the junction where the wooden tower is erected by the sixth respondent.
9.The learned Senior Counsel appearing for the petitioner also produced before this Court a copy of the communication that was sent by the Inspector of Police, Arumanai Circle, Kanyakumari District, dated 16.12.2017 which is extracted for convenience herein below:
?jhA;fs; fpwp!;Jk!; tpHh 2017-k; Mz;L 22.12.2017 Kjy; 23.12.2017 tiu mUkid beLA;Fsj;jpy; elj;jt[k; kw;Wk; 23.12.2017 -? md;W Ch;tyk; beoarhiy re;jpg;gpypUe;J beLA;Fsk; tiu elj;j mDkjp Bfhhpa[s;sPh;fs;. jhA;fs; Bfhhpa[s;s nlA;fs; Kf;fpakhd khepyrhiyfs; vd;gjhYk; MWfhzp, filahYKL, mUkid kw;Wk; gpw gFjpfspypUe;J tzpfepWtdA;fs;, bjhHpy;TlA;fs;, kUj;Jtkidfs;, fy;tp epWtdA;fSf;F nBj rhiy tHpahfj;jhd; FHpj;Jiw, khh;j;jhz;lk; kw;Wk; mz;il khepyA;fSf;F bry;y Btz;oapUg;gjhYk;, Bghf;Ftuj;Jf;Fk; bghJ kf;fSf;Fk; ghjpg;g[ Vw;gl;L rl;lk; xGA;F gpur;rpidfs; Vw;gl tha;g;g[fs; cs;sjhYk;, BkYk; jw;BghJ jf;fiy fhty; cl;Bfhl;l gFjpfspy; 30(2) Police Act 1861 eilKiwapy; nUe;J tUtjhYk; Bkw;go Ch;tyk; elj;j mDkjp kWf;fg;gLfpwJ. BkYk; cr;r ePjpkd;w Bguhizia Bkw;Bfhs; fhl;o brd;id cah;ePjpkd;wk; W.P.No.5871 of 2016-y; tHA;fpa jPh;g;ig jA;fSf;F mwpt[Wj;jgLtjpd; K:yk; ve;jtpj epfH;r;rpfisa[k; bghJ nlA;fspy; nut[ 22.00 kzpf;F Bky; xypbgUf;fpia itj;J elj;jf;TlhJ vd;gij fz;og;ghf filgpof;f Btz;Lk; vd;Wk;, fpwp!;Jk!; tpHh rhiyia milj;J, Bkil mikj;J mjdhy; gy;BtW Ch;fSf;F bry;Yk; Bghf;Ftuj;J jil bra;J tpHh elj;jhky; tpHhit Btypaplg;gl;l nlj;jpy; my;yJ ikjhdj;Jf;Fs; Bkil mikj;J chpa epge;jidfSld; elj;jplt[k; rpghhpR bra;ag;gLfpwJ.?
10.The prime objection is only about the blocking of public thoroughfare which according to the learned Senior Counsel for the petitioner assumes more importance in view of the fact that Nagercoil to Trivandram road is blocked in a place near Marthandam for construction of a bridge. Hence, it was submitted that in the present scenario for this year allowing the function at the road junction will certainly create problem for everyone who have to pass this place particularly during the two days. The learned Senior Counsel for the petitioner further stated that the petitioner has no objection if the sixth respondent in conducting the function strictly in compliance with the permission that has now been recommended by the Inspector of Police, Arumanai Circle.
11.The learned Senior Counsel appearing for the sixth respondent, however, submitted that the communication dated 16.12.2017 issued by the fourth respondent is just a recommendation of the fourth respondent and that the matter is taken up to higher officials which are pending before the higher authorities regarding the relaxation of such condition so as to ensure permission to conduct Christmas festival as it was done during past years.
12.It is true that the present Writ Petition has been filed focussing public grievance rather than individual right. However, the petitioner being a resident of the same locality has an advantage of seeking the relief even on such grounds alleging public nuisance, inconvenience and other constraints of the residents of the locality. The fact that the sixth respondent has put up arches and wooden towers in the main road is not seriously disputed. This Court having regard to the judgment of the Hon'ble Division Bench of this Court above referred to cannot allow any violation of Court order. In the light of the communication and the submissions of the respective Senior Counsels appearing for both the parties, this Court is inclined to pass the following orders:
The respondents 1 to 5 are directed to ensure that the festival proposed by the sixth respondent is conducted without giving room for any obstruction of vehicular traffic in the road concerned. It is open to the sixth respondent to earmark any vacant place or ground in the vicinity so as to conduct the festival in a more grand manner without encroaching into the public thoroughfare. Since the fourth respondent has already passed an order on 16.12.2017, the fourth respondent is directed to ensure that the festival organised by the sixth respondent is conducted strictly in adherence to the communication dated 16.12.2017 unless the sixth respondent has obtained any other order from higher authorities or from Court. It is also open to the respondents including the fourth respondent to arrive at an amicable and workable arrangement convincing to all parties in the interest of public and the religious sentiments of majority of the particular locality. In case the sixth respondent approaches any higher police officials aggrieved by the directions / recommendations of the fourth respondent in its order dated 16.12.2017, it is open to such authorities to pass any order independently after giving an opportunity to the petitioner and uninfluenced by the findings or observations found in the order dated 16.12.2017.
13.With the above directions, this Writ Petition is disposed of. No costs. Consequently, the connected Writ Miscellaneous Petitions are closed.
To
1.The District Collector, Kanyakumari District, Collectorate, Nagercoil, Kanyakumari District.
2.The Superintendent of Police, Nagercoil, Kanyakumari District.
3.The Deputy Superintendent of Police, Thuckalay Division, Nagercoil, Kanyakumari District.
4.The Inspector of Police, Arumanai Police Station, Arumanai, Kanyakumari District.
5.The Executive Officer, Arumanai Town Panchayat, Arumanai, Kanyakumari District.
.