Petitioners challenged an eviction notice issued under the Tamil Nadu Highways Act, 2001 for alleged encroachment on highway land. The court accepted the State's submission that the notice was not a second show cause but intimated the removal date, recorded that proceedings concerned only Survey No.86, and closed the writ petition.
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W.P.No.35007 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.12.2024
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE K.RAJASEKAR
W.P.No.35007 of 2024 and
W.M.P. No.37959 of 2024 in W.P. No.35007 of 2024
1.C.Arul
2.C.Muthuvel
... Petitioners
vs
... Respondents
Page Nos.1/13
W.P.No.35007 of 2024
Writ Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records on the file of the third respondent made in letter No.128/2024/UKOPO/II dated 28.10.2024 and quash the same and consequently to forbear the respondents from any way interfering with the peaceful possession and enjoyment of the property situated in Old Survey No.85 and new Survey No.124/1, ECR Road, Neelankarai Village, Sholinganallur Taluk, Chennai – 41 and quash both.
For Petitioners : Ms.G.Selvi George
For Respondents : Mr.V.Ravi, Special Government Pleader
ORDER
[Order of the Court was made by M.SUNDAR, J .,]
Captioned 'Writ Petition' (hereinafter 'WP' for the sake of brevity) pertains to proceedings under the Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002).
Page Nos.2/13
W.P.No.35007 of 2024
PROCEEDINGS DATED 26.11.2024
'W.P.No.35007 of 2024 and W.M.P.No.37959 of 2024 in W.P.No.35007 of 2024
M.SUNDAR, J., and K.RAJASEKAR, J.,
[Order of the Court was made by M.SUNDAR. J.,]
Captioned 'Writ Petition' {hereinafter 'WP' for the sake of brevity} pertains to alleged encroachment in land said to be vested in the Tamil Nadu Highways Department. A 'communication dated 28.10.2024 bearing letter No.128/2024/ c/nfh/bgh? II from R3 [Assistant Divisional Engineer, Chennai]' {hereinafter 'impugned communication' for the sake of brevity} has been assailed.
2. Ms.G.Selvi George, learned counsel on record for writ petitioners submits that an opportunity has not been given to writ petitioners.
Page Nos.3/13
W.P.No.35007 of 2024
3. Issue notice to respondents.
4. Mr.T.K.Saravanan, learned Government Advocate accepts notice for all four respondents and learned State Counsel submits that writ petitioners have responded to the impugned communication, final orders have been passed and eviction notice has been issued only thereafter. Learned State Counsel submits that eviction exercise has also been carried out. In response to this, learned counsel for writ petitioners submits that a part of property has been demolished.
5. Learned State Counsel requests for a short accommodation to produce records i.e., writ petitioners' reply, orders etc., adverted to supra.
6. Let learned State Counsel produce records dayafter-tomorrow.
7. In the interregnum, status quo as of today shall be maintained.
List in the Admission Board i.e., Motion List on 28.11.2024.'
Page Nos.4/13
W.P.No.35007 of 2024
PROCEEDINGS DATED 04.12.2024:
'W.P.No.35007 of 2024 and W.M.P.No.37959 of 2024 in W.P.No.35007 of 2024
M.SUNDAR, J., and K.RAJASEKAR, J.,
[Order of the Court was made by M.SUNDAR. J.,]
Read this in conjunction with and in continuation of proceedings of this Court dated 26.11.2024 which reads as follows:
'W.P.No.35007 of 2024 and W.M.P.No.37959 of 2024 in W.P.No.35007 of 2024
M.SUNDAR, J., and
K.RAJASEKAR, J.,
[Order of the Court was made by M.SUNDAR. J.,]
Captioned 'Writ Petition' {hereinafter 'WP' for the sake of brevity} pertains to alleged encroachment in land said to be vested in the Tamil Nadu Highways Department. A 'communication dated 28.10.2024
Page Nos.5/13
W.P.No.35007 of 2024
bearing letter No.128/2024/ c/nfh/bgh? II from R3 [Assistant Divisional Engineer, Chennai]' {hereinafter 'impugned communication' for the sake of brevity} has been assailed.
2. Ms.G.Selvi George, learned counsel on record for writ petitioners submits that an opportunity has not been given to writ petitioners.
3. Issue notice to respondents.
4. Mr.T.K.Saravanan, learned Government Advocate accepts notice for all four respondents and learned State Counsel submits that writ petitioners have responded to the impugned communication, final orders have been passed and eviction notice has been issued only thereafter. Learned State Counsel submits that eviction exercise has also been carried out. In response to this, learned counsel for writ petitioners submits that a part of property has been demolished.
5. Learned State Counsel requests for a short accommodation to produce records i.e., writ petitioners' reply, orders etc., adverted to supra.
6. Let learned State Counsel produce records
day-after-tomorrow.
7. In the interregnum, status quo as of today shall be maintained.
List in the Admission Board i.e., Motion List on 28.11.2024.'
2. Thereafter, there was one listing on 03.12.2024 and following proceedings were made:
'W.P.No.35007 of 2024 and W.M.P.No.37959 of 2024 in W.P.No.35007 of 2024 M.SUNDAR, J.,
Page Nos.6/13
W.P.No.35007 of 2024
and
K.RAJASEKAR, J.,
[Order of the Court was made by M.SUNDAR. J.,]
There is no representation for writ petitioners either in the physical Court or on 'Videoconferencing' {'VC'} platform. To be noted, this is a hybrid hearing, which is a daily / regular / routine feature in this Court.
mk
P.S.
At the end of the list, Ms.G.Selvi George, learned counsel on record for writ petitioners is before this Court after proceedings were made and learned counsel expresses regret for missing the matter when it was called. Presence of Ms.G.Selvi George is noted.'
3. Interestingly and intriguingly, along with an order pursuant to writ petitioners' response to being show caused under Section 28(2)(ii) of 'Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002)' [hereinafter 'said Act' for the sake of convenience, another 'show cause notice' ('SCN' for the sake of brevity) dated 28.10.2024 under Section 28(2)(ii) of said Act has been issued and that is the grundnorm on which the captioned WP is predicated.
4. Learned counsel for writ petitioner submits
Page Nos.7/13
W.P.No.35007 of 2024
that 03.05.2024 response of writ petitioners is the response to 28.10.2024 SCN. We will consider this as the matter progresses.
5. Nonetheless considering the trajectory the matter has taken, we deem it appropriate to write that the Divisional Engineer (H), CMDP Division - I, Alandur, Chennai-16, who has issued 28.10.2024 SCN, shall remain present in Court in the next listing.
List in the Admission Board i.e., Motion List tomorrow. List on 05.12.2024.'
Page Nos.8/13
W.P.No.35007 of 2024
when a representation is sent within seven days time limit, the same shall be considered by the authority or officer concerned before passing final orders. Pursuant to the proviso, R3 has passed final orders dated 28.10.2024 bearing reference foj vz;/1282024c/nfh/bgh?II however along with this order, R2 has sent a notice captioned 'Eviction Notice' and has stated that the same is under Section 28(2)(ii) of said Act. This is the reason why 04.12.2024 proceedings were made yesterday. Pursuant to proceedings made yesterday (04.12.2024), today, Mr.P.M.Rajaganapathi, Divisional Engineer (H), CMDP, Division – 1, Chennai - 16 (R2) is present in Court.
Page Nos.9/13
W.P.No.35007 of 2024
under the Statute i.e., said Act viz., show causing the petitioners, representation from the petitioners being considered and final orders Page Nos.10/13
W.P.No.35007 of 2024
being passed have all been complied with, let the proceedings go on as regards Old Survey No.86. As regards Old Survey No.85 (New Survey No.124/1) if there is any action in future all the rights and contentions of both sides are preserved/protected, in other words, this order will neither serve as an impetus nor impede any further proceedings in future (if any) as regards Old Survey No.85 (New Survey No.124/1).
Index : Yes / No Neutral Citation : Yes / No mmi
Page Nos.11/13
W.P.No.35007 of 2024
To
M.SUNDAR, J., and K.RAJASEKAR, J.,
mmi
W.P.No.35007 of 2024
Page Nos.12/13
W.P.No.35007 of 2024
05.12.2024
Page Nos.13/13
2 issues framed by the court
Was the eviction notice dated 28.10.2024 a second show cause notice without opportunity?
Did the impugned communication concern the petitioners' property in Old Survey No.85?
2 provisions across 2 enactments
C.Arul
C.Muthuvel
The District Collector, Chennai
The Divisional Engineer (H), CMDP Division I, Alandur
The Assistant Divisional Engineer, CMDP Division – II, Chennai
The Tahsildhar (Land Acquisition), Highways Department
M.Sundar
K.Rajasekar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
