S.Kanagamani v. The State Of Tamilnadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.06.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI & W.M.P.No.18003 of 2024 in W.P.No.16452 of 2024 S.Kanagamani ... Petitioner Vs.
1. The State of Tamilnadu rep. By The Superintending Engineer (Infrastructure &Maintenance) Highways Department, Coimbatore Zone Coimbatore - 641 018
2. The Divisional Engineer Highways Department (Infrastructure &Maintenance) Coimbatore - 641 018
3. The Assistant Engineer Highways Department (Infrastructure &Maintenance) North Division Coimbatore - 641 018
4. The Tahsildar Porur Taluk Coimbatore - 641 010 Page Nos.1/11
5. Mr. Chinnarasu @ Parameswaran ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents 1 to 4 herein to remove the encroachment put up by the 5th respondent over the lands in Survey No.965/3 of Devarayapuram Revenue Village, Perur Taluk, Coimbatore District in pursuant to the representation dated 09.02.2024. For Petitioners :
Mr.R.Selvakumar For Respondents :
Mr.P.Balathandayutham Special Government Pleader
O R D E R
[Order of the Court was made by M.SUNDAR, J.,] Captioned main 'Writ Petition' ['WP' for the sake of brevity] pertains to 'land comprised in Survey No.965/3, Devarayapuram Village in Naraseepuram Road, Perur Taluk, Coimbatore District' [hereinafter 'said land' for the sake of convenience and clarity].
2. Mr.R.Selvakumar, learned counsel on record for writ petitioner in the captioned WP submits that said land belongs to the Tamil Nadu Highways Department, after ascertaining the position that said land belongs to the Tamil Nadu Highways Department by collecting requisite material, writ petitioner sent a representation dated 09.02.2024 addressed to R2 [The Divisional Engineer, Highways Department (Infrastructure &Maintenance), Page Nos.2/11
Coimbatore - 641 018]. To be noted, a scanned reproduction of this representation as placed before us together with postal acknowledgment card are as follows:
Page Nos.3/11
Page Nos.4/11
Page Nos.5/11
Page Nos.6/11
3. According to learned counsel for writ petitioner there is encroachment qua said land and it is the further case of the writ petitioner that R5 is the alleged encroacher.
4. Issue notice to the official respondents.
5. Mr.P.Balathandayutham, learned Special Government Pleader accepts notice for R1 to R5 (official respondents).
6. Considering the nature of the matter, with the consent of learned counsel on both sides, main writ petition was taken up in the admission Board itself.
7. We are acutely conscious of the fact that R5 (private respondent) is not before us but as we are taking up the main writ petition and as we will be disposing of the same vide this order, we will be putting in adequate safety valve besides referring to safety valve which is already built in vide 'the Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002)' [hereinafter 'TN Highways Act' for the sake of convenience].
8. If there is any encroachment in the form of immovable structure encroaching Highway or in the area vested with the Government under TN Page Nos.7/11
Highways Act, action should be initiated under Section 28(2)(ii), which reads as follows:
'28.(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.'
9. Learned State counsel submits that in this case R2 is the Highways Authority concerned as regards Section 28 of said Act.
10. In the light of the narrative thus far, captioned writ petition is disposed of with a directive to R2 to initiate action under Section 28(2)(ii) of TN Highways Act which means that R2 should issue a show-cause notice to R5. Though obvious, we make it clear that R2 should issue show cause Page Nos.8/11
notice to any other person whose rights are likely to be affected. This is the safety valve alluded to supra.
11. Proviso to Section 28(2)(ii) of TN Highways Act also makes it clear that a representation received within the 7 days window post SCN should be disposed of. In the case on hand, as the writ petitioner has already sent the aforementioned representation dated 09.02.2024 R2 shall consider the said representation also before passing final orders and this is owing to proviso to Section 28(2)(ii) of TN Highways Act.
12. Captioned writ petition disposed of as closed with the aforesaid simple directive Consequently, captioned WMP thereat is closed. There shall be no order as to costs.
(M.S.,J.) (K.G.T.,J.) 25.06.2024 Index : Yes / No gpa Page Nos.9/11
To
1. The Superintending Engineer (Infrastructure &Maintenance) Highways Department, Coimbatore Zone Coimbatore - 641 018
2. The Divisional Engineer Highways Department (Infrastructure &Maintenance) Coimbatore - 641 018
3. The Assistant Engineer Highways Department (Infrastructure &Maintenance) South Division Coimbatore - 641 018
4. The Tahsildar Porur Taluk Coimbatore - 641 010 Page Nos.10/11
M.SUNDAR, J., and K.GOVINDARAJAN THILAKAVADI, J., gpa 25.06.2024 Page Nos.11/11