Madrasdated High Court · 2025

W.P.No.17475 of 2025ORDER[made by M.SUNDAR, J.]Captioned 'writ petition' (hereinafter 'WP' for the sake of brevity) has been filed with a prayer seeking issue of a writ of certiorari qua 'an order dated 29.04.2025 bearing reference Memorandum No.512/2024/A1 made by R2 (Assistant Divisional Engineer-Highways)' [hereinafter 'impugned order' for the sake of convenience and clarity].2.There were two earlier writ petitions being W.P.Nos.2091 of 2024 and 24367 of 2024 and the same were disposed of vide orders dated 31.01.2024 and 03.10.2024 respectively. For the sake of ready reference, the 31.01.2024 and 03.10.2024 orders are scanned and reproduced below:Order dated 31.01.2024:'IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 31.01.2024CORAM :THE HON'BLE MR.SANJAY V.GANGAPURWALA, CHIEF JUSTICEANDTHE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHYW.P.No.2091 of 2024Page Nos.2/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 2025Page Nos.3/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 2025T.Maheshraj .. PetitionerVs.1. The District Collector Tiruvallur.2. The Assistant Divisional Engineer (H) Office of the Assistant Divisional Engineer (H) Thiruttani Sub-Division, Thiruttani.3. The Revenue Divisional Officer Revenue Division Office, Thiruttani.4. The Tahsildar Thiruttani... RespondentsPrayer: Petition filed under Article 226 of the Constitution of India seeking a writ of certiorarified mandamus, calling for the records of the 2nd respondent in connection with the memorandum No. 111/2023/A1 dated 06/11/2023 issued by the 2nd respondent, and to quash the same consequently direct the 4th respondent to implement the order dated 27/12/2023 vide Na.Ka. 3102/2023/A2 issued by the 3rd respondent within a time frame. For the Petitioner:Mr.SrinivasSenior Counselfor Mr.G.Vijayakumar For the Respondents:Mr.A.Edwin PrabakarState Government PleaderORDER(Made by the Hon'ble Chief Justice)Heard Mr.Srinivas, learned Senior Counsel appearing for Mr.G.Vijayakumar, learned counsel for the petitioner and Mr.A.Edwin Prabakar, learned State Government Pleader for the respondents. 2. Learned counsel for the petitioner submits that the impugned order has been passed without giving opportunity to the petitioner.Page Nos.4/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 20253. According to the learned State Government Pleader, survey was conducted, measurement was carried out and encroachment was found on the Right of Way (RoW) of the Highway. 4. As far as the measurement is concerned, the petitioner has the remedy of appeal, if the petitioner is aggrieved by the measurement. As the impugned order dated 06.11.2023 is passed without issuing a show cause notice to the petitioner, we pass the following orders:(i)The impugned order dated 06.11.2023 shall be construed as a show cause notice. The petitioner shall file a reply to the said show cause notice, if the petitioner so desires, within a period of ten days from today;(ii)If reply is filed within ten days, then the authorities shall consider the said reply filed by the petitioner and take a decision on its own merits. 5. In light of the above, the writ petition stands disposed of. There shall be no order as to costs. Consequently, W.M.P.No.2244 of 2024 is closed. (S.V.G., CJ.) (D.B.C., J.) 31.01.2024' Order dated 03.10.2024:'IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 03.10.2024CORAM :THE HON'BLE MR.K.R.SHRIRAM, CHIEF JUSTICEANDTHE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHYW.P.No.24367 of 2024 & W.M.P.No.26626 of 2024 T.Maheshraj..Petitioner Vs.Page Nos.5/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 20251. The District Collector Tiruvallur.2. The Assistant Divisional Engineer (H) Office of the Assistant Divisional Engineer (H) Thiruttani Sub~Division, Thiruttani.3. The Revenue Divisional Officer Revenue Divisional Office, Thiruttani.4. The Tahsildar Thiruttani.5. The Assistant Engineer (H), C&M Thiruttani Division...RespondentsPrayer : Petition filed under Article 226 of the Constitution of India seeking of a writ of Certiorarified Mandamus calling for the records of the 5th respondent in connection with the memorandum No.83/2024/c.ngh (ne) dated 12.08.2024 issued by the 5th respondent and to quash the same and consequently, direct the respondents to close the ditch dug by them in between the petitioner-s property situated at Survey No.307/5A at Thiruttani Village, an extent of 25 cents and the highway.For the Petitioner:Mr.R.SrinivasSenior CounselFor Mr.G.VijayakumarFor the Respondents :Mr.A.Edwin PrabakarState Government Pleader Assisted byMr.M.Habeeb RahmanGovernment Advocate ORDER(Order of the Court was made by the Hon'ble Chief Justice)It is petitioner's case that notwithstanding fresh adjudication proceedings being conducted by respondent No.2, pursuant to an order dated 31.01.2024 passed by this Court in W.P.No.2091 of 2024, respondent No.5, who is an officer subordinate to respondent No.2, has issued the impugned order dated 12.08.2024.2. We have considered the petition and the documents annexed Page Nos.6/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 2025thereto. 3. Learned Senior Counsel submitted that the impugned order has been passed ignoring all submissions made by petitioner to respondent No.2. It is also averred that respondent No.2 has not even held an inquiry treating the order dated 06.11.2023 as a show cause notice or considered petitioner's explanation dated 07.02.2024.4. Though the respondents had enough time to file counter, no counter has been filed denying any of the allegations. Therefore, without going into the merits of the matter, we hereby quash and set aside the impugned order dated 12.08.2024.5. Respondent No.2 shall hold an inquiry and pass orders, after considering petitioner's representation/reply dated 07.02.2024. A personal hearing shall also be given to petitioner, the notice whereof shall be given at least five working days in advance. If petitioner wishes to file written submissions to record what was submitted during the personal hearing and also what transpired during the personal hearing, petitioner may do so within five working days of the personal hearing.6. Petition is disposed of. We clarify that we have not made any observation on the merits of the matter. There shall be no order as to costs. Consequently, the interim application is closed.(K.R.SHRIRAM, CJ) (SENTHILKUMAR RAMAMOORTHY,J.) 03.10.2024'3.The aforereferrerd orders speak for themselves but owing to the nature of the order we propose to make, we refrain from dilating on the same. Be that as it may, the same have been captured for completion of facts and to aid appreciation of our order.4.Short point is, this Court, vide order dated 31.01.2024 in Page Nos.7/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 2025W.P.No.2091 of 2024 (reproduced supra), has made it clear that 06.11.2023 notice shall be treated as a 'show cause notice' (SCN), 10 days time for response has been given to the writ petitioner and it has also been made clear that the authorities shall consider the reply of the writ petitioner and pass orders on its own merits. This, clearly, is the mechanism put in place vide Section 28 of 'the Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002)' (hereinafter 'TN Highways Act' for the sake of brevity). Section 28 (in its entirety) is reproduced below: '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.In the case on hand, the writ petitioner has responded to the 06.11.2023 notice (now an SCN owing to the judicial order) vide a Page Nos.8/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 2025detailed response dated 07.02.2024 and a scanned reproduction of the same is as follows:Page Nos.9/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 2025Page Nos.10/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 2025Page Nos.11/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 2025Page Nos.12/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 2025Page Nos.13/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 2025Page Nos.14/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 2025Page Nos.15/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 2025Page Nos.16/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 20256.The aforementioned 07.02.2024 response has been adverted to at serial no.3 in the reference part of the impugned order made by R2 but as rightly pointed out by learned Senior Counsel for the writ petitioner, there is no whisper about the response of the writ petitioner, much less any discussion qua dispositive reasoning. This is clearly contrary to the aforereferred 31.01.2024 order made by another Hon'ble Division Bench. In any event, it is contrary to the scheme of the statute and more particularly to Section 28 of the TN Highways Act which has been extracted and reproduced supra.7.Therefore, we interfere with the impugned order on the short point that the writ petitioner's response dated 07.02.2024 has not been considered by R2.8.The following order is made:i.The impugned order bearing reference Memorandum No.512/2024/A1 dated 29.04.2025 made by R2 is set aside on the short point that it is contrary to the 31.01.2024 judicial order and Section 28 of the TN Page Nos.17/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 2025Highways Act as it has not considered the writ petitioner's response dated 07.02.2024;ii.We make it clear that we have not expressed any view or opinion on the merits of the matter qua encroachment, all questions are left open and it is for the authorities concerned to make an order after considering the writ petitioner's response dated 07.02.2024 vide proviso to Section 28 (2)(ii) of the TN Highways Act;iii.The order made in the aforesaid manner by R2 shall be served on the writ petitioner within a period of seven working days from the date of the order under due acknowledgment;iv.Coercive action, in any manner, if any and if that be so, can only be subject to and depending on the order to be made by R2 in the aforesaid manner; andPage Nos.18/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 2025v.It is made clear that all rights and contentions of writ petitioner shall stand preserved for assailing such an order, if it is adverse to the writ petitioner.9.Captioned WP stands disposed of in the aforesaid manner. As we have made it clear that coercive action, if any, is subject to order to be made by R2, captioned WMP stands disposed of as closed. There shall be no order as to costs.(M.S.,J.) (H.C.,J.)06.06.2025Index : Yes/NoNeutral Citation: Yes/NocadPage Nos.19/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 2025To1.The District CollectorTiruvallur2.The Assistant Divisional Engineer (H)Office of the Assistant Divisional Engineer (H)Thiruttani Sub DivisionThiruttani3.The Revenue Divisional OfficerRevenue Divisional OfficeThiruttani4.The TahsildarThiruttani5.The Assistant Engineer (H), C & MThiruttani DivisionPage Nos.20/21 https://www.mhc.tn.gov.in/judis W.P.No.17475 of 2025M.SUNDAR, J.andHEMANT CHANDANGOUDAR, J.cadW.P.No.17475 of 202506.06.2025Page Nos.21/21