R.S.Palanisamy v. District Collector
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.07.2024
CORAM
THE HON'BLE MR.JUSTICE M. SUNDAR AND THE HON'BLE MRS.JUSTICE K. GOVINDARAJAN THILAKAVADI & W.M.P. No. 22772 of 2024 R.S. Palanisamy ..Petitioner Vs.
1.
District Collector, Collectorate Building, Coimbatore - 641 018.
2.
The Tahsildar, Taluk Office, Sulur, Coimbatore - 641 402.
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3.
The Project Director, National Highways Authority of India, D.No.11/1, Kongu Nagar East, Ramanathapuram, Coimbatore - 641 045.
..Respondents Prayer:
Petition under Article 226 of the Constitution of India praying for issue of a Writ of Certiorari to call for records pertaining to Notice No. NHAI/PIU CBE/ ENCROACHMENT/NH-544(NH-47)/2024/1015 dated 13.07.2024 issued by the 3rd respondent and to quash the same as without jurisdiction and for consequential orders.
For Petitioner ::
Mr. Sharath Chandran For Respondents ::
Mr.P. Balathandayutham, Special Govt.Pleader for R1 & R2 Mr.Su. Srinivasan, Standing Counsel for R3 (NHAI)
O R D E R
(Made by M. SUNDAR,J.) Captioned main 'Writ Petition' ['WP' for the sake of brevity] has been filed with a certiorari prayer assailing a notice dated 13.07.2024 issued by 3rd respondent (The Project Director, National Highways Authority of India, D.No.11/1, Kongu Nagar East, Ramanathapuram,Coimbatore - 641 045) 2\36
under Section 26(2) of 'The Control of National Highways (Land and Traffic) Act, 2002' [hereinafter 'said Act' for the sake of brevity and convenience] alleging unauthorised occupation. (This 13.07.2024 notice shall hereinafter be referred to as 'impugned notice' for the sake of convenience and clarity).
2.
Mr. Sharath Chandran, learned counsel for writ petitioner submits that the land in question is S.F. No. 285, situate in Karumathampatti Village, Sulur Taluk, Coimbatore District (hereinafter 'said land' for the sake of convenience and clarity). Adverting to impugned notice, learned counsel submitted that while a reading of impugned notice itself makes it very clear that it has been issued under Section 26(2) of said Act, it has straightaway slithered to sub-section (6) of Section 26 of said Act without adhering to sub-sections (3) and (5), more particularly sub-section (3). In this regard, we deem it appropriate to re-produce section 26 of said Act with sub-sections (1) to (6) thereat, we do so and the same read as follows:
'26. Removal of unauthorised occupation 3\36
(1)Where the Highway Administration or the officer authorised by such administration in this behalf is of the opinion that it is necessary in the interest of traffic safety or convenience to cancel any permit issued under sub-section (2) of section 24, it may, after recording the reasons in writing for doing so, cancel such permit and, thereupon, the person to whom the permission was granted shall, within the period specified by an order made by the Highway Administration or such officer restore the portion of the Highway specified in the permit in such condition as it was immediately before the issuing of such permit and deliver the possession of such portion to the Highway Administration and in case such person fails to deliver such possession within such period, he shall be deemed to be in unauthorised occupation of highway land for the purposes of this section and section 27.
(2)When, as a result of the periodical inspection of Highway land or otherwise, the Highway Administration or the officer authorised by such Administration in this behalf is satisfied that any unauthorised occupation has taken place on highway land, the Highway Administration or the officer so authorised shall serve a notice in a prescribed form on the person causing or responsible for such unauthorised occupation requiring him to remove such unauthorised occupation and to restore such highway land in its original condition as before the unauthorised occupation within the period specified in the notice.
(3)The notice under sub-section (2) shall specify there in the highway 4\36
land in respect of which such notice is issued, the period within which the unauthorised occupation on such land is required to be removed, the place and time of hearing any representation, if any, which the person to whom the notice is addressed may make within the time specified in the notice and that failure to comply with such notice shall render the person specified in the notice liable to penalty, and summary eviction from the highway land in respect of which such notice is issued, under sub-section (6).
(4)The service of the notice under sub-section (2) shall be made by delivering a copy thereof to the person to whom such notice is addressed or to his agent or other person on his behalf or by registered post addressed to the person to whom such notice is addressed and an acknowledgement purporting to be signed by such person or his agent or other person on his behalf or an endorsement by a postal employee that such person or his agent or such other person on his behalf has refused to take delivery may be deemed to be prima facie proof of service.
(5)Where the service of the notice is not made in the manner provided under sub-section (4), the contents of the notice shall be advertised in a local newspaper for the knowledge of the person to whom the notice is addressed and such advertisement shall be deemed to be the service of such notice on such person.
(6)Where the service of notice under sub-section (2) has been made under sub-section (4) or sub-section (5) and the unauthorised occupation on the highway land in respect of which such notice is 5\36
served has not been removed within the time specified in the notice for such purpose and no reasonable cause has been shown before the Highway Administration or the officer authorised by such Administration in this behalf for not so removing unauthorised occupation, the Highway Administration or such officer, as the case may be, shall cause such unauthorised occupation to be removed at the expenses of the Central Government or the State Government, as the case may be, and impose penalty on the person to whom the notice is addressed which shall be five hundred rupees per square metre of the land so unauthorisedly occupied and where the penalty so imposed is less than the cost of such land, the penalty may be extended equal to such cost.
3.
In the light of language in which sub-section (3) of Section 26 of said Act is couched, issue notice.
4.
Mr.P. Balathandayutham, learned Special Government Pleader accepts notice for 1st and 2nd respondents and Mr.Su. Srinivasan, learned Standing Counsel accepts notice for 3rd respondent/'National Highways Authority of India'['NHAI' for the sake of brevity]. 5.
Considering the point that is being canvassed, all the 6\36
aforementioned three learned counsel consented for main WP being taken up and heard out in the Admission Board.
6.
Before we proceed further, we notice that there are atleast three earlier WPs qua the subject matter. Therefore, for the purpose of specificity and clarity, we deem it appropriate to extract and reproduce the orders in the aforementioned three WPs.
7.
WP No. 999 of 2019 was filed by writ petitioner herein (Palanisamy) with a mandamus prayer regarding transfer of patta qua said land. This WP along with WMP thereat was disposed of by a Hon'ble Single Judge of this Court in and by an order dated 14.02.2019 and a scanned reproduction of the order is as follows: 7\36
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8.
Aforementioned order speaks for itself as it had directed 4th respondent thereat (2nd respondent before us) i.e., jurisdictional Tahsildar to consider writ petitioner's representation dated 20.02.2017 and pass appropriate orders after giving due opportunity of hearing to writ petitioner and rival claimants, if any, within a period of six weeks. Orders were not passed necessitating the writ petitioner (R.S. Palanisamy) to file another WP along with 6 others i.e., WP No. 1823 of 2024 and this WP No. 1823/2024 along with WMP thereat came to be disposed of by another Hon'ble Single Judge of this Court in and by an order dated 29.02.2024 and a scanned reproduction of the same is as follows:
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9.
A careful perusal of aforementioned order makes it clear that Hon'ble Single Judge had referred to order dated 14.02.2019 made in WP 15\36
No. 999 of 2019 and thereafter directed both respondents namely, District Collector, Coimbatore and Tahsildar, Sulur, Coimbatore, to consider the representation of writ petitioner being representation dated 22.11.2023 after giving notice to writ petitioner as well as rival claimants/interested parties/objectors/aggrieved parties/adjacent owners, if any. 10.
Though the aforementioned directive is to both District Collector and Tahsildar, we are informed that jurisdictional Tahsildar namely, 2nd respondent before us disposed of 22.11.2023 representation in and by an order dated 12.06.2024 and a scanned reproduction of disposal order of jurisdictional Tahsildar is as follows: 16\36
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11.
Thereafter, one D. Prabakaran filed WP. No. 31782 of 2023 with a prayer to direct official respondents to remove alleged encroachments qua said land. To be noted, said land is S.F.No.285 in Karumathampatti Village, Sulur Taluk, Coimbatore District as already alluded to earlier in this order and it is the stated position of 3rd respondent that it is an encroachment qua NH-47 at what is known as Karumathampatti Four Road Junction. In this WP No. 31782 of 2023, the sole writ petitioner before us was 10th respondent but the writ petition came to be disposed of without notice to private respondents including 10th respondent and a scanned reproduction of the order of Hon'ble Division Bench dated 07.11.2023 in the said WP is as follows:
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The above order, vide paragraph No.3 has recorded the submission of learned counsel for NHAI that 3rd respondent before us (1st respondent in that WP) would inspect the land and if encroachment is found, necessary steps, in accordance with law, would be undertaken for removal of the encroachment expeditiously. It is after the aforementioned order, impugned notice came to be issued.
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12.
On a careful perusal of impugned notice, we find, as already alluded to supra, that it has been issued under Section 26(2) of said Act by 3rd respondent after setting out the details of what according to 3rd respondent is unauthorized occupation qua said land in paragraph Nos. 1 to
5. There is a direction in paragraph Nos. 6 and 7 directing removal of unauthorized occupation straightaway and it also says that the encroacher (writ petitioner before us), in the event of failure to comply with the notice shall render himself liable to penalty and summary eviction under subsection (6) of Section 26 of said Act. The impugned notice reads as follows: 25\36
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13.
This takes us back to sub-section (3) of Section 26 of said Act. Sub-section (3) of Section 26 of said Act comes into play when a notice under sub-section (2) is issued. This means that when impugned notice was issued under sub-section (3), sub-section (2) came into play. A careful reading of sub-section (3) makes it clear that 3rd respondent, while issuing the impugned notice, should have specified the place and time of hearing any representation, if any, which the encroacher (writ petitioner) may make within the time specified in the impugned notice. This means that the impugned notice should have set out the time frame for writ petitioner to send a representation, if so advised and if so desired and if there is any representation, place and time of hearing of representation should have been specified. We understand and read place as 'venue'. 14.
In the case on hand, writ petitioner says that he has a representation to make and according to writ petitioner, he has a rock-solid response to make. We express no opinion on this submission as we would be relegating the matter to 3rd respondent for considering the representation. 28\36
15.
We find that the language in which sub-section (3) of Section 26 of said Act is couched makes it clear that it is statutorily imperative for 3rd respondent to specify the time frame, for the encroacher to make a representation (if any) i.e., if so advised and if so desired and if a representation is made, 3rd respondent should fix the place (venue) and time of hearing qua the representation. Therefore, the provision makes 'hearing' statutorily imperative. In this regard, we deem it appropriate to refer to the order dated 01.08.2019 in W.P. No. 22634 of 2019 (State Bank of India Officers' Association V. The Assistant Commissioner ST) wherein one of us (M. SUNDAR,J.) sitting as a Single Judge explained the difference between the expressions ' a reasonable opportunity to show cause' and 'a reasonable opportunity of being heard' occurring in proviso to sub-sections
(1) & (2) of Section 27 of 'Tamil Nadu Value Added Tax Act, 2006 (Tamil Nadu Act 32 of 2006)' (hereinafter 'TNVAT Act' for the sake of brevity and convenience) and proviso to Section 22(4) of TNVAT Act respectively. In other words, proviso to sub-sections (1) & (2) of Section 27 of TNVAT Act talks about 'a reasonable opportunity to show cause' and proviso to Section 22(4) of TNVAT Act talks about 'a reasonable opportunity of being heard'. 29\36
The most relevant paragraphs of the order are paragraph Nos. 17 and 18, which read as follows:
'17. The expression occurring in the proviso to SubSections (1) and (2) of Section 27 of TNVAT Act is 'a reasonable opportunity to show cause' whereas expression occurring in the proviso to Section 22(4) is 'a reasonable opportunity of being heard.'
18. To be noted, both these expressions have been underlined in the extracts and reproduction of same supra for the sake of convenience, clarity and ease of reference. No elucidation or elaboration is required to say that these two expressions are clearly different and distinct. It is also to be noticed that these two expressions are deployed in the same statute. Most importantly, both these expressions have been deployed with regard to revised assessment proceedings. In the considered view of this Court, both Section 22(4) and Section 27(1) deal with assessment other than deemed assessment. While Section 22(4) deals with a situation where the dealer has not filed returns or if the returns filed are incomplete or incorrect, Section 27(1) visualizes two situations wherein one is escaped assessment and the other is where the dealer has been taxed at a rate lower than the rate at which a dealer ought to have been 30\36
taxed. This situation is adumbrated and articulated in subsections (1) and (2) of Section 27. Therefore, in the considered opinion and view of this Court, the legislature in its wisdom has consciously used two different expressions in the proviso to Subsections (1) and (2) of Section 27 and Sub-section (4) of Section 22, though both deal with a situation of assessment by the Assessing Officer which is other than deemed assessment. While Section 22(4) which is referred to in fiscal law parlance as 'best judgment' deals with situation where no return or incomplete returns filed, Section 27(1) and (2) deal with situation where returns have been filed. It may not be necessary to delve into those aspect of the matter any further as the plain reading and plain language in which these two expressions are couched is unambiguous and it is not even ambivalent.'
The above matter was carried in appeal by way of an intra court appeal by State Bank of India Officers' Association and the aforementioned order was confirmed by a Hon'ble Division Bench vide judgment dated 6.12.2019 in W.A. No. 4073 of 2019.
16.
In the light of State Bank of India Officers' Association principle, we are of the considered view that sub-section (3) of Section 26 of 31\36
said Act makes it statutorily imperative to inter alia do three things: (a) Give the encroacher a time frame and specify the same in the notice i.e, time frame for the encroacher to make a representation;
(b) Specify the place (venue) and time of hearing qua representation, if representation is received within time frame and thereafter (c) If there is failure (subject of course to outcome of hearing qua representation) resort to sub-section (6) of Section 26 of said Act.
17.
Learned counsel for R3 contended that Section 26(3) does not envisage making an order. We are unable to agree as sublime legal philosopy underlying sub-section (3) is NJP (Natural Justice Principle) and therefore the same will stand neutralized if there is a hearing but the noticee is not let known about outcome of the hearing which in turn will obviously vest the noticee with a right to assail the same in a manner known to law. 18.
In the light of the narrative, discussion and dispositive 32\36
reasoning supra, we make the following order: (i) In this case, as there is no disputation about jurisdiction of 3rd respondent who issued the impugned notice, we are not interfering with paragraph Nos. 1 to 5 of the impugned notice; (ii) Paragraph Nos. 6 and 7 of the impugned notice are set aside;
(iii) Writ petitioner shall now give a representation within a fortnight from today i.e., by 08.08.2024;
(iv) On receipt of representation on or before 08.08.2024 from writ petitioner, 3rd respondent shall send a communication to writ petitioner under due acknowledgement specifying the place (venue), date and time of hearing in such a manner that this communication is served on the writ petitioner at least five days before the date of hearing;
(v) Post hearing, 3rd respondent shall, depending upon representation and hearing, pass orders on the representation on merits and in accordance with law;
(vi) In this regard, we make it clear that we have not expressed 33\36
any view or opinion on the merits of the matter. Therefore, it is open to 3rd respondent to pass orders on merits which will include orders resorting to sub-section (6) of Section 26 of said Act or dropping the proceedings, as the case may be; (vii) An order so made (as above) shall be served on writ petitioner under due acknowledgement within three working days from the date of the order.
19.
Captioned WP is disposed of in the aforesaid manner with the aforesaid directives. Consequently, captioned WMP is closed. There shall be no order as to costs.
(M.S.J.) (K.G.T.J.) nv 25.07.2024 34\36
To 1.
District Collector, Collectorate Building, Coimbatore - 641 018.
2.
The Tahsildar, Taluk Office, Sulur, Coimbatore - 641 402.
3.
The Project Director, National Highways Authority of India, D.No.11/1, Kongu Nagar East, Ramanathapuram, Coimbatore - 641 045.
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M. SUNDAR, J.
and K. GOVINDARAJAN THILAKAVADI, J.
25.07.2024 36\36