S.Simson Sundara Raj v. The Assistant Divisional Engineer (Highway)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.06.2025
CORAM
THE HONOURABLE MR. JUSTICE M.SUNDAR and THE HONOURABLE MR. JUSTICE HEMANT CHANDANGOUDAR W.P.No.17462 of 2025 and W.M.P. Nos.19801 and 19802 of 2025 S. Simson Sundara Raj Petitioner vs.
The Assistant Divisional Engineer (Highway) (Construction and Maintenance) Tambaram Sub Division Tambaram Chennai 600 042 2.
The Assistant Engineer (Highway) (Construction and Maintenance) Tambaram Division Tambaram Chennai 600 042 3.
The Tahsildar Kundrathur Taluk Kancheepuram District Respondents Writ Petition filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus to call for the records relating to the impugned order of the first respondent in Page Nos.1/14
No.80/Encroachment/2025/ENiVu/dated 02.05.2025 and quash the same and consequently, direct the first respondent to consider the petitioner's representation dated 03.05.2025 and till then, not to disturb the petitioner's rightful possession and dispossess him from the land situated at S.No.4/1B2, Kundrathur Village, Kundrathur Taluk, Kancheepuram District.
For petitioner :
Mr. L.G. Sahadevan for Mr. A. Ilayaperumal For respondents :
Mr. M.S. Arasakumar Government Advocate
ORDER
[was made by M.SUNDAR, J.] Captioned main 'writ petition' [hereinafter 'WP' for the sake of brevity] has been filed inter alia assailing an 'order dated 02.05.2025 issued by R1 [Assistant Divisional Engineer, Highway {Construction and Maintenance} Tambaram Sub Division, Tambaram]' [hereinafter 'impugned order' for the sake of brevity, convenience and clarity]. 2.
Mr. L.G. Sahadevan, learned counsel representing Mr.A.Ilayaperumal, learned counsel on record for writ petitioner and Mr. M.S. Arasakumar, learned Government Advocate for respondents are before us.
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3.
Adverting to the impugned order, learned counsel for the writ petitioner, submitted that the impugned order has been issued under Section 28 of 'the Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002)' (hereinafter 'TN Highways Act' for the sake of brevity) but it has not called upon the writ petitioner to show cause in seven days. On the contrary, it straightaway calls upon the writ petitioner to remove alleged encroachment within seven days, is learned counsel's say.
4.
The scope of captioned main WP is substantially narrow, legal drill on hand is very limited and therefore, with the consent of learned counsel on both sides, main WP is taken up for final disposal. 5.
Before we proceed further, we deem it appropriate to extract and reproduce Section 28 of the TN Highways Act in its entirety and the same reads as follows:
'28.
Prevention of encroachment - (1) The Highways Authority or any person authorised by it in this behalf shall, at such time as may be considered necessary, conduct such checks and periodical inspection of the highway boundaries, with the view to ensure the prevention of unauthorised encroachment and the removal of such encroachment.
(2) The Highways authority or any person authorised by it in this behalf, may-- Page Nos.3/14
(i) remove, without any notice, any movable temporary structure, enclosure, stall, booth, any article whatsoever hawked, exposed or displayed for sale or any other thing whatsoever by way of encroaching the highway or in any area where the construction or development of a highway is undertaken or proposed to be undertaken.
(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.'
(underlining made by us for ease of reference) 6.
A careful perusal of Section 28 of TN Highways Act brings to light that we are concerned with Section 28(2)(ii) and the proviso thereat as this provision provides for an alleged encroacher being show caused before calling upon the alleged encroacher to remove the encroachment, if any. In the case on hand, without issuing a show cause notice (SCN ), the impugned order passed by R1 directly states that in the event of failure of removal of encroachment by writ petitioner, encroachment will be removed.
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7.
It is also seen that the writ petitioner has responded to the impugned order vide his detailed response dated 03.05.2025, a scanned reproduction of which is as follows:
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8.
In view of noncompliance of proviso to Section 28(2)(ii) of the TN Highways Act, in order to secure the ends of justice, the following order is made:
i.
Impugned order shall be treated as a show cause notice (SCN) served on the writ petitioner today and the writ petitioner's representation dated 03.05.2025 in response to the impugned order which is now directed to be treated as SCN, shall be considered on its own merits and in accordance with law by R1 and final orders shall be passed by R1 in accordance with proviso to Section 28(2)(ii) of TN Highways Act;
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ii. Final order so passed shall be served on the writ petitioner within a period of five working days from the date of the final order;
iii. If the final order to be passed by R1 ends up in favour of the writ petitioner, that would be curtains on the matter; iv. If it happens to the contrary, in other words, if the final order to be passed by R1 is going to be adverse to the writ petitioner, the same shall be kept in abeyance for a fortnight from the date of service of the final order on the writ petitioner so as to provide a window to the writ petitioner to assail the said order if permissible in law or to seek judicial review of the said order;
v. If the writ petitioner does not take recourse to either of the aforesaid two options within a fortnight from the date of service of the final order, the final order so passed by R1 will be resuscitated and put into motion;
vi. Though obvious, we make it clear that any further coercive action qua removal of encroachment will be subject to / depending on final orders to be passed by R1 under proviso to Section 28(2)(ii) of TN Highways Act; and Page Nos.11/14
vii.We also make it clear (though obvious) that we have not expressed any view or opinion on the merits of the matter and therefore, R1, while passing final order, shall do so untrammelled by the observations made in this order. 9.
Captioned WP stands disposed of with the aforementioned observations and directives in the aforesaid manner. In view of the order passed in the captioned WP, the order of interim stay granted by another Hon'ble Division Bench on 09.05.2025 (Vacation Court) stands vacated and as a sequitur, captioned writ miscellaneous petitions stand disposed of as closed. There shall be no order as to costs. [M.S., J.] [H.C., J.] 06.06.2025 cad Index : Yes / No Speaking order / Non-speaking order Page Nos.12/14
To:
The Assistant Divisional Engineer (Highway) (Construction and Maintenance) Tambaram Sub Division Tambaram Chennai 600 042 2.
The Assistant Engineer (Highway) (Construction and Maintenance) Tambaram Division Tambaram Chennai 600 042 3.
The Tahsildar Kundrathur Taluk Kancheepuram District Page Nos.13/14
M.SUNDAR, J.
and HEMANT CHANDANGOUDAR, J.
cad 06.06.2025 Page Nos.14/14