M.Manokaran v. The Assistant Divisional
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.04.2017 CORAM :
The Hon'ble Ms.INDIRA BANERJEE, CHIEF JUSTICE AND The Hon'ble MR.JUSTICE M.SUNDAR W.P.No.9780 of 2017 and W.M.P.No.10762 of 2017 M.Manokaran .. Petitioner -vs1.The Assistant Divisional Engineer, High Ways Department, Kurinjipadi, Cuddalore District.
2.District Collector, Cuddalore District, Cuddalore.
3.Tahsildar, Chidambaram, Cuddalore District.
4.P.Ashok .. Respondents Petition filed under Article 226 of the Constitution of India praying for issue of Writ of Certiorari to call for the records of the 1st respondent in his proceedings in Ku.No.40/2017/E.Va.A dated 17.04.2017 and quash the same. For Petitioner :
Mr.A.Muthukumar For Respondents :
Mr.T.N.Rajagopalan, Spl.G.P. for RR 1 to 3 * * * * *
O R D E R
(Order of the Court was made by M.Sundar, J.) This writ petition has been filed assailing a notice dated 17.04.2017 bearing Ref.No. Ku.No.40/2017/E.Va.A , issued by the
first respondent before us, i.e. Assistant Divisional Engineer, Highways Department, Kurinjipadi, Cuddalore District. 2.The subject matter of the writ petition is land comprised in R.S.No.213 situate in Sethiyathope Village, Bhuvanagiri Taluk, Cuddalore District. There is no dispute about this factual aspect. It has been brought to our notice that one P.Ashok had earlier filed writ petition in this Court being W.P.No.1310 of 2017 with a prayer to direct the official respondents, particularly, the first respondent before us, to remove the alleged encroachment in the above said R.S.No.213 situate in Sethiyathope Village, Bhuvanagiri Taluk, Cuddalore District (hereinafter referred to as "the said land", for the sake of convenience and clarity). In the above said writ petition, the writ petitioner before us, Mr.M.Manoharan, is the fourth respondent.
3.The writ petition came to be disposed of on 19.01.2017 by a Division Bench of this Court and the relevant paragraphs are 2, 3 and 4. The same read as follows:
''2.We find this to be one more case showing complete administrative inaction. If in the own opinion of the respondents unauthorized construction was going on, then it should not require a party to approach the Court for action being taken.
3.We,thus, direct the first respondent to carry out inspection of site to determine the current position within fifteen days from the date of receipt of the order and in respect of any unauthorized construction or encroachment to take action in accordance with law, after notice to all concerned, and conclude the proceedings within a maximum period of two months thereafter.
4.The District Collector/second respondent is called upon to look into the matter of inaction on the part of the authorities for almost three years and to determine why no action was taken and to fix responsibility and take consequent administrative disciplinary actions.''
4.The writ petitioner before us, Mr.M.Manokaran, filed Writ Miscellaneous Petitions being W.M.P.Nos.6879 and 6972 of 2017., in the above said disposed of writ petition, with prayers to recall the above said order dated 19.01.2017 and for interim stay pending proceedings.
5.The aforesaid recall petition was predicated primarily on the pivotal ground that the above said order dated 19.01.2017 was passed without the presence of the writ petitioner (4th
respondent therein). The pivotal ground is set out in paragraph 4 of the order passed in the recall petition and we deem it relevant to extract the same and it reads as under: ''4.Now the petitioner has come up with these applications saying that at the time of passing the order, he was not heard and suppressing the material facts, the writ petitioner has obtained the order.'' 6.Ultimately, the recall petition and the stay petition were disposed of by a Division Bench of this Court on 27.03.2017 and the operative portions are paragraphs 7 and 8. The same read as follows:
''7.It is for the petitioner to approach the concerned authorities and file a representation disclosing all facts and on such representation being filed by the petitioner, the concerned authorities to take action in accordance with law, after affording an opportunity to all concerned.
8.There is no scope to recall the order made in W.P.No.1310 of 2017, dated 19.1.2017."
7.Now, the impugned notice has been issued referring to the earlier writ petition, namely, W.P.No.1310 of 2017. A perusal of the notice and the submissions at the Bar, reveal that the notice has been issued under Section 28 (2) (ii) of the Tamil Nadu Highways Act, 2001 (hereinafter referred to as 'the said Act' for the sake of brevity).
8.It is the specific case of the writ petitioner that survey and demarcation which preceded the impugned notice of the said land alleged to have been encroached, was conducted without putting him on notice.
9.Be that as it may, it is also brought to our notice by the learned counsel for the writ petitioner, Mr.A.Muthukumar, that there is a proviso to Section 28 (2) (ii) of the said Act, which provides for a representation and also for the same to be considered by the authority or officer concerned before passing final orders.
10.Learned counsel for the writ petitioner, Mr.A.Muthukumar, submits that he would now give a representation as per the said proviso.
11.If the representation is given within a week from the date of receipt of a copy of this order, the same shall be considered and the authority or officer concerned shall pass final orders and proceed further depending on the final orders.
12.With the above observations, this writ petition is disposed of. No costs. Consequently, W.M.P.No.10762 of 2017 is closed.
-s/dAssistant Registrar True Copy Sub-Assistant Registrar sra To 1.The Assistant Divisional Engineer, High Ways Department, Kurinjipadi, Cuddalore District.
2.District Collector, Cuddalore District, Cuddalore.
3.Tahsildar, Chidambaram, Cuddalore District.
+1 cc to Mr.A.Muthukumar Advocate sr 23950 +1 cc to the Government Pleader sr 24135 W.P.No.9780 of 2017 aa21/04/2017