Disposed

M/S.Alva Hospital v. the Assistant Divisional Engineer(Highways)

Madras HC18 Dec 2024WP/37662/2024

Case brief

AI extract

What is this about?

The High Court held that the impugned notice, despite its form, shall be treated as a Show Cause Notice under Section 28(2)(ii) of the Tamil Nadu Highways Act. The court directed the respondents to consider the petitioner's representation dated 17.11.2024 in response to the said notice and pass final orders, thereby disposing of the writ petition.

What did the court decide?

Notice treated as Show Cause Notice; representation to be considered for final orders.

M/S.Alva Hospital Vs the Assistant Divisional… — Writ and Judicial Review | Madras HC (2024)

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W.P.No.37662 of 2024

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 18.12.2024

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CORAM

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THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MR.JUSTICE K.RAJASEKAR

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W.P.No.37662 of 2024 and

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W.M.P.No.40722 of 2024 in

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W.P.No.37662 of 2024

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M/s.Alva Hospital (P) Ltd., No.74/A-2, Meenkarai Road Ambarapalayam, Pollachi - 642 103 Rep. by its Director Dr.Vasanthkumar Alva S/o.K.Subbaiah Alva ... Petitioner Vs.

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The Assistant Divisional Engineer (Highways) Construction and Maintenance Anamalai Sub Division Pollachi, Coimbatore District.

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The Junior Engineer (Highways) Construction and Maintenance Anamalai Sub Division Pollachi, Coimbatore District.

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The District Collector Coimbatore District.

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Page Nos.1/9

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https://www.mhc.tn.gov.in/judis

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W.P.No.37662 of 2024

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The Tahsildar Pollachi Taluk Coimbatore District. ... Respondents

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Prayer :

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Writ Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records in letter No.169-84 A/2024-U dated 04.11.2024 passed by the 1st respondent and quash the same and further direct the 1st respondent to consider the petitioner's representation dated 17.11.2024 granting time to remove the compound wall in front of the petitioner's hospital at No.74/A-2, Meenkarai Road, Ambarampalayam, Pollachi, Coimbatore District - 642 103.

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For Petitioner : Mr.V.M.Venkataramana For Respondents : Mr.V.Ravi Special Government Pleader

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O R D E R

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[Order of the Court was made by M.SUNDAR, J. ,]

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A notice dated 04.11.2024 bearing letter No.169-84 A/2024/U issued by R1 [The Assistant Divisional Engineer (Highways)] has been assailed in the captioned 'Writ Petition' {hereinafter 'WP' for the sake of brevity}. This '04.11.2024 notice' shall hereinafter be referred to as 'impugned notice' for the sake of brevity, convenience and clarity.

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The impugned notice is captioned 'Show Cause Notice' {'SCN'} and Page Nos.2/9

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https://www.mhc.tn.gov.in/judis

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W.P.No.37662 of 2024

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it says that it has been issued under Section 28(2)(ii) of 'the Tamil Nadu Highways Act, 2001' {hereinafter 'TN Highways Act' for the sake of brevity}

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Mr.V.M.Venkataramana, learned counsel for writ petitioner submits that though the caption in the impugned notice is SCN and though impugned notice says that it has been issued under Section 28(2)(ii) of TN Highways Act, it directly calls upon the writ petitioner to remove the encroachment

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(compound wall) without show causing the writ petitioner.

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Issue notice to respondents.

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Mr.V.Ravi, learned Special Government Pleader accepts notice for all four respondents.

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Learned State Counsel, on instructions submits that it is a clear case

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of encroachment as even according to writ petitioner, the prayer is to consider a representation dated 17.11.2024 and grant time to remove the compound wall.

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Owing to the limited scope of captioned WP, main WP is taken up

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in the Admission Board with the consent of both sides.

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Section 28(2)(ii) together with proviso thereat of TN Highways Act

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Page Nos.3/9

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https://www.mhc.tn.gov.in/judis

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W.P.No.37662 of 2024

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reads as follows:

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'28. Prevention of encroachment.-

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(1) ...........................

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(2) The Highways Authority or any person authorised by it in this behalf, may

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(i) ............................

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(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:

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Provided that any representation received within the timelimit shall be considered by the authority or officer concerned before passing final orders.'

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{underlining made by this Court for ease of reference}

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The term 'Highways Authority' has been defined under Sub-Section

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(13) of Section 2 of TN Highways Act and the same reads as follows:

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'2. Definitions - In this Act, unless the context otherwise

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requires:-

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(1) .......................................... (2) .......................................... (3) .......................................... (4) .......................................... (5) ..........................................

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Page Nos.4/9

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(6) .......................................... (7) .......................................... (8) .......................................... (9) .......................................... (10) ......................................... (11) ......................................... (12) ........................................

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W.P.No.37662 of 2024

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(13) "Highways Authority" means the officer

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appointed under sub-section (2) of Section 5'.

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Section 2(13) of TN Highways Act takes us to Section 5(2) of TN

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Highways Act and Section 5(2) reads as follows:

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'5. Appointment of Highways Authorities -

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(1) ..........................................

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(2) The Divisional Engineer, Highways Department of the Government in-charge of each division, shall be the Highways authority for that division.'

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To be noted, 'Government' has also been defined in Section 2(11)

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of TN Highways Act and the same reads as follows:

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''2. Definitions - In this Act, unless the context otherwise

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requires:-

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(1) .......................................... (2) ..........................................

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Page Nos.5/9

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https://www.mhc.tn.gov.in/judis

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W.P.No.37662 of 2024

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(3) ..........................................
(4) ..........................................
(5) ..........................................
(6) ..........................................
(7) ..........................................
(8) ..........................................
(9) ..........................................
(10) ..........................................
(11) 'Government' means the State Government.'

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Learned State Counsel submits that Divisional Engineer has authorised R1 to issue the impugned notice. Section 28(2) of TN Highways Act makes it clear that a notice under Section 28 can be issued either by the Highways Authority or any person authorised by the Highways Authority.

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Reverting to the impugned notice, in the light of the language in which Section 28(2)(ii) of TN Highways Act and proviso thereat is couched, we deem it appropriate to write that the impugned notice shall now be treated as SCN and representation of writ petitioner dated 17.11.2024 shall be treated as representation in response to the impugned SCN. In the light of proviso to Section 28(2)(ii) of TN Highways Act, the authority or officer concerned should now pass final orders considering the representation of

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Page Nos.6/9

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https://www.mhc.tn.gov.in/judis

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W.P.No.37662 of 2024

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writ petitioner. In any event, we hasten to add that the prayer in the writ petition itself is grant of time for removal of encroachment. This means that writ petitioner does not enter upon disputation or contestation qua encroachment.

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If the impugned notice dated 04.11.2024 is treated as SCN and representation of writ petitioner dated 17.11.2024 is treated as response to SCN and if orders are made by authority or officer concerned that will satisfy requirement of show causing the writ petitioner and that will also satisfy requirement qua Section 28(2)(ii) of TN Highways Act.

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The narrative, discussion and dispositive reasoning means that certiorari limb of prayer is not answered in the affirmative but there is a rider that the impugned notice is sustained as SCN. Mandamus limb of prayer is answered by saying that writ petitioner's representation dated 17.11.2024 shall now be treated as response to impugned notice which is now SCN which means that the authority or officer concerned shall make final orders.

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Captioned WP disposed of in the aforesaid manner with aforesaid preservations and directives. Consequently, Writ Miscellaneous Petition is also disposed of as closed. There shall be no order as to costs.

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Page Nos.7/9

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https://www.mhc.tn.gov.in/judis

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W.P.No.37662 of 2024

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(M.S.,J.) (K.R.S.,J.)

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18.12.2024

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Index : Yes / No Neutral Citation : Yes / No Speaking order / Non-speaking order

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To 1. The Assistant Divisional Engineer (Highways) Construction and Maintenance Anamalai Sub Division Pollachi, Coimbatore District.

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1. The Junior Engineer (Highways) Construction and Maintenance Anamalai Sub Division Pollachi, Coimbatore District.

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1. The District Collector Coimbatore District.

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1. The Tahsildar Pollachi Taluk Coimbatore District.

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M.SUNDAR, J., and K.RAJASEKAR, J.,

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Page Nos.8/9

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https://www.mhc.tn.gov.in/judis

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W.P.No.37662 of 2024

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W.P.No.37662 of 2024

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18.12.2024

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Page Nos.9/9

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https://www.mhc.tn.gov.in/judis

M/S.Alva Hospital v. the Assistant Divisional Engineer(Highways)

Case brief

What is this about?

What did the court decide?

M/S.Alva Hospital v. the Assistant Divisional Engineer(Highways)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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