M.A.Fahira Parveen v. Asst. Divisional Engineer
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.03.2016
CORAM
THE HON'BLE MR.JUSTICE M.VENUGOPAL AND THE HON'BLE MR. JUSTICE T.MATHIVANAN W.P.Nos.8172 to 8176 of 2016 and W.M.P.Nos.7261 to 7270 of 2016 M.A.Fahira Parveen
...Petitioner in W.P.8172/2016
D.Nadanasabapathi
...Petitioner in W.P.8173/2016
E.Nagendran
...Petitioner in W.P.8174/2016
C.Selvi
...Petitioner in W.P.8175/2016
Inamul Hague
...Petitioner in W.P.8176/2016
Vs.
Asst. Divisional Engineer (Highways), Construction and Maintenance, Tambaram Sub Division, Office of Construction and Maintenance, Tambaram, Chennai - 42.
...Respondent in all the W.Ps
Writ Petitions filed under Article 226 of the Constitution of India praying to issue a writ of certiorari to call for the records pertaining to the impugned notices in Nos. 149/2016160/Medavakkam/E.Va.Tho.A, 149/2016-209/Medavakkam/E.Va.Tho.A, 149/2016-210/Medavakkam/E.Va.Tho.A,149/2016-212/Medavakkam/E.Va. Tho. A and 149/2016-165/Medavakkam/E.Va.Tho.A respectively dated 15.02.2016 on the file of the respondent and quash the same in respect of the petitioners.
For Petitioner : Mr.Neelakandan for M/s.R.Krishnaswamy in all the W.Ps For Respondents : Ms.A.Srijayanthi, Special Government Pleader in all the W.Ps
COMMON ORDER (Order of the Court was made by M. VENUGOPAL, J.) Heard both sides.
2.By consent, the main writ petitions are taken up for final disposal at the admission stage itself. 3.According to the petitioners, they are in occupation of their respective properties with residential building and vacant land for a long period and for the purpose of widening the overbridge, the respondent had issued impugned notices dated 15.02.2016 in terms of Section 28 (2)(ii) of Tamil Nadu Highways Act, 2001 (for short "the Act"), requiring them to surrender the vacant possession. The real grievance of the petitioners is that prior to the issuance of the impugned notices dated 15.02.2016 to the petitioners, no show cause notices were issued to the petitioners concerned and in this regard, there appears to be a violation of Section 28(2)(ii) of the Act.
4.At this juncture, it is worthwhile for this Court to extract the ingredients of Section 28 of the Tamil Nadu Highways Act, 2001, which runs as under:
"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 - (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."
5.It is to be borne in mind that no doubt Section 28 of the Act enjoins the Highways Authority to remove from highways land any unauthorised encroachment. In the instant case on hand, concededly, no show cause notices were issued to the respective petitioners prior to the issuance of impugned notices dated 15.02.2016. Therefore, this Court comes to irresistible and inescapable conclusion that there is negation of the ingredients of Section 28(2)(ii) of the Act, as such, this Court interferes with the impugned notices dated 15.02.2016 and sets aside the same. Consequently, the writ petitions succeed. 6.In the result, the writ petitions are allowed and the impugned notices dated 15.02.2016 are set aside by this Court for the reasons assigned in these writ petitions. No costs. Consequently, connected miscellaneous petitions are closed. 7.
It is abundantly made clear that allowing the present writ petitions will not preclude the concerned authorities to take fresh action against the writ petitioners, of course, in the manner known to law and in accordance with law. In such an event, it is open to the petitioners and the respondent to raise all factual and legal pleadings and to seek redressal of their grievances.
Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar mmi To The Asst. Divisional Engineer (Highways), Construction and Maintenance, Tambaram Sub Division, Office of Construction and Maintenance, Tambaram, Chennai - 42.
+1cc to Mr.V.Ajay Khose, Advocate, S.R.No.14146 W.P.Nos.8172 to 8176 of 2016 VGI(CO) CA(21/03/2016)