Palanisamy Vs the Divisional Engineer

Captioned main 'writ petition' (hereinafter 'WP' for the sake of brevity) has been preferred seeking a writ of certiorari qua a letter dated 12.03.2025 bearing reference Ka.No.Manu/2025/Uu issued by R2 (Assistant Divisional Engineer) {hereinafter 'impugned letter' for the sake of convenience and clarity}. In and vide impugned letter, the writ petitioners have been directed to remove alleged encroachment made by them in land belonging to Highways Department, within a week.

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Mr. K. Myilsamy, learned counsel on record for writ petitioners, submitted that the impugned letter straightaway calls upon writ petitioners to remove the alleged encroachment without show causing them.

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W.P. No.12764 of 2025

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Issue notice to RR 1 to 3 (official respondents). Notice to

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R4 is dispensed with inasmuch as this order will not touch upon the rights of R4 much less be prejudicial to the interest of R4. On the contrary, rights of R4 will stand preserved as would be set out elsewhere infra in this order.

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Mr. V. Ravi, learned Special Government Pleader, accepts notice for RR 1 to 3 and submits that the writ petitioners have encroached upon the land belonging to the Highways Department and that has necessitated the impugned letter.

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From a perusal of the impugned letter, it is evident that pursuant to the complaint made by R4 (private respondent) stating that the writ petitioners have encroached upon land belonging to the Highways Department, vide the impugned letter, the writ petitioners have been directed to remove the alleged encroachment made by them within seven days. Further, in the impugned letter, there is no reference to any provision of law under which the same has been made.

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As regards prevention of encroachment in a State Highway

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and / or removal of any encroachment in a State Highway, 'the Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002)' (hereinafter 'said Act' for the sake of brevity) comes into play. The most relevant provision qua case on hand is Section 28 and the same, in its entirety, reads as follows:

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'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.

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

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(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.

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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 time limit shall be considered by the authority or officer concerned before passing final orders.'

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(underlining made by us for ease of reference)

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7. A careful perusal of Section 28 of said Act brings to light

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that the writ petitioners ought to be show caused vide Section 28(2)(ii) i.e., a 'show cause notice' (hereinafter 'SCN' for the sake of brevity) returnable in seven days has to be issued and after considering the response/representation of the noticees/writ petitioners, the authority/officer concerned should pass 'final orders'. In the case on hand, it is not even the case of learned State counsel that there is Section 28(2)(ii) adherence.

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8. In the light of the narrative thus far, the following order is

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passed:

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( i ) impugned letter i.e., letter dated 12.03.2025,

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issued by R2 shall now be treated as an SCN within the meaning of Section 28(2)(ii) of said Act; (To be noted, a scanned reproduction of impugned letter is as follows):

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(ii) SCN would be construed to have been served on the writ petitioners today (09.04.2025);

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(iii) Therefore, writ petitioners shall now send a representation in response to SCN (if so advised and if so desired) within seven days from today i.e., on or before 16.04.2025;

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(iv) R1 shall consider the representation/response of writ petitioners and pass 'final orders' in accordance with proviso to Section 28(2)(ii) of said Act;

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(v) If the writ petitioners do not send a representation/response within seven days, as above, it is open to R1 to proceed pursuant to impugned letter which is now being treated as SCN vide instant order;

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(vi) Final orders to be made by R1 under proviso to Section 28(2)(ii) shall be duly served on the writ petitioners with due acknowledgment within three working days from the date of the order and all rights and contentions of writ petitioners are preserved with regard to challenge to such an order, if it is adverse to the writ petitioners;

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(vii) since the impugned letter is at the instance of R4 (private respondent), rights and contentions of R4 also stand preserved; and

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(viii) Though obvious, we make it clear that coercive action (if any) shall be subject to and depending on 'final orders' to be made by R1.

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9. Captioned main WP stands disposed of in the aforesaid

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manner. As we have held that coercive action (if any) shall be subject to/depending on 'final orders', c aptioned writ miscellaneous petition thereat has become otiose and therefore, the same is disposed of as

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closed. There shall be no order as to costs.

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(M.S., J.) (K.G.T., J.) 09.04.2025

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cad Index : Yes/No NC : Yes/No

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