K.M.Kannappan v. State Of Tamil Nadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.06.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI W.P. Nos.15192, 15197 and 15203 of 2024 and W.M.P.No.16523 of 2024 in W.P.No.15192 of 2024, W.M.P.No.16531 of 2024 in W.P.No.15197 of 2024 W.M.P.No.16537 of 2024 in W.P.No.15203 of 2024 1.K.M.Kannappan 2.K.Ponni Kannappan .. Petitioners in W.P.No.15192 of 2024 1.Nagarajan 2.Devi .. Petitioners in W.P.No.15197 of 2024 C.Subramanian .. Petitioner in W.P.No.15203 of 2024 Vs.
1.State of Tamil Nadu through the Secretary to Government, Highways Department, Fort St. George, Chennai - 9.
2.The Assistant Divisional Engineer (H) & (CM), State Highways Department, Tambaram Sub Division, Tambaram - 600 045.
3.The District Collector, Chengalpattu, Collector Office, GST Road, Chengalpattu - 603 001.
.. Respondents in all W.Ps 1/18
Prayer in W.P.No.15192 of 2024: Writ petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorari to call for the records of the impugned order passed by the second respondent - The Assistant Divisional Engineer- (H) & (CM), State Highways Department, Tambaram Sub-Division, Tambaram - 600 045 in Thakkedhu No.234-1/2024/Ee.Ne.Va dated 22.05.2024 in Survey Nos.119/1D, 119/1E1 and 119/1E2, Vengaivasal, Tambaram, Chennai and quash the same. Prayer in W.P.No.15197 of 2024: Writ petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorari to call for the records of the impugned order passed by the second respondent - The Assistant Divisional Engineer- (H) & (CM), State Highways Department, Tambaram Sub-Division, Tambaram - 600 045 in Thakkedhu No.234-1/2024/Ee.Ne.Va dated 22.05.2024 in Survey No.119/1F, Vengaivasal, Tambaram, Chennai and quash the same.
Prayer in W.P.No.15203 of 2024: Writ petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorari to call for the records of the impugned order passed by the second respondent - The Assistant Divisional Engineer- (H) & (CM), State Highways Department, Tambaram Sub-Division, Tambaram - 600 045 in Thakkedhu No.234-1/2024/Ee.Ne.Va dated 22.05.2024 in Survey No.119/1A, Vengaivasal, Tambaram, Chennai and quash the same.
For Petitioner :
Mr.G.Stanly Hebzon Singh in all W.Ps For Respondents :
Mr.T.K.Saravanan, Government Advocate in all W.Ps 2/18
COMMON ORDER (Order of the Court was made by M.Sundar, J.) This common order will now dispose of the captioned three main 'Writ Petitions' (hereinafter 'WPs' in plural and 'WP' in singular for the sake of brevity, convenience and clarity) and the captioned 'Writ Miscellaneous Petitions' (hereinafter 'WMPs' in plural and 'WMP' in singular for the sake of brevity, convenience and clarity) thereat.
2. Factual matrix qua captioned matters is common. Short facts are that the writ petitioners were visited with 'proceedings dated 22.05.2024 bearing reference Thakkedhu No.2341/2024/Ee.Ne.Va' (collectively 'impugned proceedings' made by R2 i.e., Assistant Divisional Engineer (H) & (CM), State Highways Department, Tambaram Sub Division, Tambaram; that assailing the impugned proceedings, captioned WPs have been filed by the respective noticees; that vide impugned proceedings, R2 has said that the writ petitioners have caused 'encroachment' qua a 'highway' necessitating action vide 'The Tamil Nadu Highways Act, 2001' (hereinafter 'said Act' for the sake of convenience and clarity); that 3/18
the grievance of the writ petitioners is that an opportunity to show cause has not been given; that predicated on said grievance, captioned WPs have been filed.
3. Issue notice.
4. Mr.T.K.Saravanan, learned Government Advocate accepts notice for all the respondents in all the captioned three WPs and WMPs thereat.
5. Learned State counsel on instructions submits that the impugned proceedings are show cause notices within the meaning of Section 28(2)(ii) of said Act. A careful perusal of the impugned proceedings brings to light that it is not happily worded as it does not call upon the noticees with specificity and clarity to show cause. In any event, after receipt of impugned proceedings, the noticees have sent representations dated 24.05.2024 and a scanned reproduction of the representations as placed before us are as follows:
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Representation of the writ petitioner in W.P.No.15192 of 2024 :
5/18
6/18
7/18
Representation of the writ petitioner in W.P.No.15197 of 2024 :
8/18
9/18
Representation of the writ petitioner in W.P.No.15203 of 10/18
2024 :
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12/18
6. This takes us back to Section 28(2)(ii) of said Act and the proviso thereat which reads as follows:
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'28.Prevention of encroachment: (1) .......
(2) The Highways authority or any person authorised by it in this behalf, may-- (i) ...........
(ii) remove any immovable structure, whether permanent or temporary in nature, encroaching the highway or in the area vested with Government under this Act, after issuing a show cause notice against such removal, returnable within a period of seven days from the date of receipt thereof:
Provided that any representation received within the time limit shall be considered by the authority or officer concerned before passing final orders.'
7. Before we proceed further, we deem it appropriate to say that in the days to come, show cause notices contemplated vide Section 28(2)(ii) of said Act should be couched in a language with clarity and specificity calling upon noticees/addressees 'to show cause'.
8. As regards proviso to Section 28(2)(ii) of said Act, it makes it clear that any representation received within the time limit qua show cause notice shall also be considered by the authority or 14/18
officer concerned before passing orders. Therefore, it is statutorily necessary that the aforementioned representations dated 24.05.2024 need to be considered by R2.
9. Owing to the limited perimeter and landscape of the captioned WPs, with the consent of both sides, main WPs were taken up in the Admission Board itself.
10. In the light of the narrative, discussion and our dispositive reasoning/views set out supra, the following order is made:
10.1 The three impugned proceedings all dated 22.05.2024 issued by R2 shall now be construed as 'show cause notices' ('SCNs' in plural and 'SCN' in singular for the sake of convenience and clarity) and the noticees/writ petitioners will respond to the same (to R2) within seven days from today i.e., by 20.06.2024; 10.2 The aforementioned representations dated 24.05.2024 shall be considered by R2 within the same time frame i.e., by 20.06.2024;
10.3 The proceedings of R2 pursuant to 15/18
considering SCNs and proceedings of R2 qua representations shall be communicated to the writ petitioners under due acknowledgement within five working days from the date on which the proceedings are made;
10.4 Thereafter, it is open to the respondents to proceed in accordance with law subject of course to the outcome of the proceedings in response to the SCNs and the proceedings disposing of the representations. Likewise the rights of the writ petitioners qua the outcome of the SCNs and the proceedings disposing all the representations are also preserved.
11. We make it clear that we have not expressed any view or opinion on the merits of the matter and therefore consideration of the cause to be shown and the representations dated 24.05.2024 shall be on its own merits and in accordance with law de hors any observation in this order which has been made for the limited purpose of ensuring compliance qua the procedure contemplated in Section 28(2)(ii) of said Act and the proviso thereat.
12. Captioned three WPs and captioned three WMPs 16/18
thereat are disposed of in the aforesaid manner. There shall be no order as to costs.
(M.S.J.) (K.G.T.J.) 13.06.2024 Index:Yes/No mmi To 1.The Secretary to Government, Highways Department, Fort St. George, Chennai - 9.
2.The Assistant Divisional Engineer (H) & (CM), State Highways Department, Tambaram Sub Division, Tambaram - 600 045.
3.The District Collector, Chengalpattu, Collector Office, GST Road, Chengalpattu - 603 001.
M.SUNDAR.J., and K.GOVINDARAJAN THILAKAVADI, J., 17/18
mmi W.P. Nos.15192, 15197 and 15203 of 2024 13.06.2024 18/18