High Court · 2025

W.P. No.31710 of 2025IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 28.08.2025CORAM:THE HONOURABLE MR. JUSTICE M. SUNDARANDTHE HONOURABLE MR. JUSTICE HEMANT CHANDANGOUDARW.P. No.31710 of 2025 and W.M.P.Nos.35504 and 35506 of 2025K. BalajiPetitionervs.1.The District CollectorOffice of the District CollectorChengalpet DistrictChengalpet2.The TahsildarTiruporur TalukTiruporur District3.The Assistant Divisional EngineerHighways DepartmentOffice of the Divisional EngineerAlagesan NagarChengalpet DistrictChengalpet 603 0014.D. MuraliRespondentsWrit Petition filed under Article 226 of the Constitution of India seeking a writ of certiorari calling for the records of the third respondent and quash the show cause notice dated 11.07.2025 relating to the commercial shop bearing no.1/268, King Proteins, Old Mahabalipuram Road, Padur, Chengalpattu District comprised in Survey No.80.Page 1 of 12 https://www.mhc.tn.gov.in/judis W.P. No.31710 of 2025For petitionerMr. G. PalaniFor respondents Mr. T.K.Saravanan1 to 3Addl. Govt. PleaderORDER(made by M. SUNDAR, J.)Captioned main 'writ petition' [hereinafter 'WP' for the sake of brevity] has been filed assailing an 'order dated 11.07.2025 issued by third respondent (Assistant Divisional Engineer, Highways)' [hereinafter 'impugned order' for the sake of brevity, convenience and clarity]. 2.Adverting to the impugned order, Mr. G. Palani, learned counsel on record for writ petitioner, submitted that the impugned order has been issued under Section 28(2)(ii) of 'The Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002)' [hereinafter 'said Act' for the sake of brevity] but it has not called upon the writ petitioner to show cause in seven days. On the contrary, it straightaway calls upon the writ petitioner to remove alleged encroachment within seven days, is learned counsel's say.3.Issue notice to respondents.Page 2 of 12 https://www.mhc.tn.gov.in/judis W.P. No.31710 of 20254.Mr.T.K.Saravanan, learned Additional Government Pleader, accepts notice for official respondents (respondents 1 to 3). 5.The scope of captioned main WP is substantially narrow, legal drill on hand is very limited and therefore, with the consent of learned counsel for writ petitioner and learned State counsel, captioned main WP is taken up for final disposal in the Admission Board itself, dispensing with notice to fourth respondent in the light of the order this Court proposes to make.6.Before we proceed further, we deem it appropriate to extract and reproduce Section 28 of 'The Tamil Nadu Highways (Amendment) Act, 2024 (Tamil Nadu Act 11 of 2024) [hereinafter 'Amended Highways Act' for the sake of convenience and clarity] in its entirety and the same reads as follows:'28.Prevention of encroachment – (1) The Administrator 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 Administrator 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.Page 3 of 12 https://www.mhc.tn.gov.in/judis W.P. No.31710 of 2025(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.'(underlining made by us for the sake of specificity)7.A careful perusal of Section 28 of Amended Highways Act brings to light that we are concerned with Section 28(2)(ii) and the proviso thereat, as this provision provides for an alleged encroacher being show caused before being calling upon to remove the alleged encroachment, if any. In the case on hand, without issuing a show cause notice (SCN), the impugned order issued by third respondent directly states inter alia that in the event of failure of removal of encroachment by writ petitioner, encroachment will be removed by the Highways Department itself.8.It is also seen that the writ petitioner has construed the impugned order as SCN and responded to the impugned order vide his detailed reply dated 17.07.2025, a scanned reproduction of which is as follows:Page 4 of 12 https://www.mhc.tn.gov.in/judis W.P. No.31710 of 2025Page 5 of 12 https://www.mhc.tn.gov.in/judis W.P. No.31710 of 2025Page 6 of 12 https://www.mhc.tn.gov.in/judis W.P. No.31710 of 2025Page 7 of 12 https://www.mhc.tn.gov.in/judis W.P. No.31710 of 2025Page 8 of 12 https://www.mhc.tn.gov.in/judis W.P. No.31710 of 20259.In view of non-compliance of proviso to Section 28(2)(ii) of Amended Highways Act, in order to secure the ends of justice, the following order is made:i.Impugned order shall be treated as an SCN served on the writ petitioner today (28.08.2025) and the writ petitioner’s representation dated 17.07.2025 in response to the impugned order which is now directed to be treated as SCN, shall be considered on its own merits and in accordance with law by third respondent and final orders shall be passed by third respondent in accordance with proviso to Section 28(2)(ii) of Amended Highways Act;ii.In the reply dated 17.07.2025, writ petitioner/noticee has taken a stand that his patta land was taken over / utilised without resorting to acquisition proceedings, without payment of compensation and in lieu of the same, the land which is the subject matter of SCN was allotted to writ petitioner. This specific point shall be addressed and answered by third respondent while making 'final orders vide proviso to Section 28(2)(ii);iii.Final orders so passed shall be served on the writ petitioner within five working days from the date of the final orders;Page 9 of 12 https://www.mhc.tn.gov.in/judis W.P. No.31710 of 2025iv.If the final orders to be passed by third respondent end up in favour of the writ petitioner, that would be curtains on the matter; v.If it happens to the contrary, in other words, if the final orders to be passed by third respondent are going to be adverse to the writ petitioner, the same shall be kept in abeyance for a fortnight from the date of service of the final orders on the writ petitioner so as to provide a window to the writ petitioner to assail the said order if permissible in law or to seek judicial review of the said order;vi.If the writ petitioner does not take recourse to either of the aforesaid two options within a fortnight from the date of service of the final orders, the final orders to be passed by third respondent will be resuscitated and put into motion;vii.Though obvious, we make it clear that any further coercive action qua removal of encroachment will be subject to / depending on final orders to be passed by third respondent under proviso to Section 28(2)(ii) of Amended Highways Act; viii.We make it clear (though obvious) that we have not expressed any view or opinion on the merits of the matter and therefore, third respondent, while passing final orders, shall do so untrammelled by the observations made in this order; andPage 10 of 12 https://www.mhc.tn.gov.in/judis W.P. No.31710 of 2025ix.It is also made clear that this order does not touch or impinge upon the rights and contentions of fourth respondent (private respondent) and all his rights and contentions stand preserved10.Captioned WP stands disposed of with the aforementioned observations and directives in the aforesaid manner. Consequently, captioned writ miscellaneous petitions stand disposed of as closed. There shall be no order as to costs. (M.S., J.) (H.C., J.)28.08.2025cadIndex : Yes/NoNC : Yes/NoTo1.The District CollectorOffice of the District CollectorChengalpet DistrictChengalpet2.The TahsildarTiruporur TalukTiruporur District3.The Assistant Divisional EngineerHighways DepartmentOffice of the Divisional EngineerAlagesan NagarChengalpet DistrictChengalpet 603 001Page 11 of 12 https://www.mhc.tn.gov.in/judis W.P. No.31710 of 2025M. SUNDAR, J.andHEMANT CHANDANGOUDAR, J.cadW.P.No.31710 of 202528.08.2025Page 12 of 12