✦ High Court of India · 06 Jan 2025

High Court · 2025

Case Details High Court of India · 06 Jan 2025

Court

High Court of India

Decided

06 Jan 2025

Bench

M SUNDAR

Length

1,597 words

Acts & Sections

Constitution of India Tamil Nadu Highways Act 2001

W.P. No.38421 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 06.01.2025CORAM:THE HON'BLE MR. JUSTICE M. SUNDARANDTHE HON'BLE MR. JUSTICE K. RAJASEKARW.P. No.38421 of 2024 & W.M.P. No.41612 of 2024S. LingakumarPetitionervs.1.The District CollectorOffice of the District CollectorCoimbatore 641 0182.The District Revenue OfficerCollectorateCoimbatore 641 0183.The Sub-CollectorOffice of the Sub-CollectorPollachi4.The TahsildarOffice of the TahsildarAnamalai 642 1045.The Assistant Divisional EngineerHighways Department(Construction & Maintenance)Vaalparai Sub-DivisionMinparai PostAttagatti 642 1016.The Executive OfficerKottur Town PanchayatKotturMalaiyandipattinamPollachi 642 1141/11 https://www.mhc.tn.gov.in/judis W.P. No.38421 of 20247.R. SelvakumarRespondentsWrit Petition filed under Article 226 of the Constitution of India seeking a writ of certiorari calling for the records on the file of the fifth respondent in respect of the final show cause notice vide F.vz;?18/2023/,/t/bjh/m-ehs;? 02.12.2024 and to quash the same as illegal and arbitrary.For petitionerMr. S. NagarajanORDER(made by M. SUNDAR, J.)When the captioned 'writ petition' ('WP' for the sake of brevity) was taken up, Mr. S. Nagarajan, learned counsel for writ petitioner, Mr.T.K. Saravanan, learned Government Advocate appearing for RR 1 to 5 and Mr. A.M. Ayyadurai, learned Government Advocate appearing for R6 submitted in one voice that the captioned matter is directly and squarely covered by order of this Court dated 19.12.2024 made in W.P.No.38184 of 2024 and W.M.P. thereat which reads as follows:'Captioned main 'writ petition' ('WP' for the sake of brevity) is the second round of litigation in this Court. The first round is vide W.P.No.15675 of 2024 which came to be disposed of on 18.06.2024 by a Division Bench of this Court to which one of us (M. SUNDAR, J.) was a party.2.Mr. S. Nagarajan, learned counsel for writ petitioner, is before us in the Admission Board.3.Short facts, shorn off elaboration, which is not necessary for appreciating this order are:2/11 https://www.mhc.tn.gov.in/judis W.P. No.38421 of 2024i.that proceedings were initiated against writ petitioner under 'Tamil Nadu Highways Act, 2001 (Act 34 of 2002)' (for the sake of brevity 'TN Highways Act') inter alia by issue of a notice dated 09.05.2024 styled 'show cause notice' ('SCN' for the sake of brevity);ii.that this SCN called upon the writ petitioner to remove the encroachment without show causing him;iii.that this 09.05.2024 SCN was issued under Section 28(2)(ii) of TN Highways Act;iv.that Section 28(2)(ii) of TN Highways Act specifically provides for show causing the noticee and also passing final orders on any representation if it is received within the show cause period of seven days;v.that therefore, in and by aforereferred 18.06.2024 order (in W.P. No.15675 of 2024), this 09.05.2024 SCN was set aside with liberty to the respondents to issue fresh SCN in accordance with law under Section 28(2)(ii) of TN Highways Act;vi.that it comes to light that R5 (Executive Officer, Kottur Town Panchayat), pursuant to orders of this Court, has issued a fresh SCN dated 24.06.2024;vii.that it further comes to light that in response to fresh SCN, the noticee/writ petitioner has sent a detailed representation dated 29.06.2024;viii.that based on the fresh SCN dated 24.06.2024 and the writ petitioner's representation in response to the SCN being representation dated 29.06.2024, R5 has now made an order dated 02.12.2024 bearing F/vz?18-2023-,tbjhm ('impugned order' for the sake of clarity and convenience);ix.that assailing the impugned order, captioned main WP has been filed with certiorari prayer; andx.that the matter is in the Admission Board and Mr. S. Nagarajan, learned counsel for writ petitioner is before us in the Admission Board (as already alluded to supra).4.This Court, having set out short facts and having captured the trajectory the matter has taken qua the earlier round of litigation in this Court, proceeds to consider the captioned WP in the Admission Board.5.At the outset, this Court deems it appropriate to make it clear that aforereferred fresh SCN dated 24.06.2024 (issued pursuant to 3/11 https://www.mhc.tn.gov.in/judis W.P. No.38421 of 2024earlier order dated 18.06.2024 made in W.P. No.15675 of 2024) and the writ petitioner's response to the same by way of a representation dated 29.06.2024 have not been placed before this Court though the same have been clearly referred to in the impugned order vide serial nos. (2) and (3) respectively of reference. For the sake of clarity and specificity, we deem it appropriate to extract and reproduce the impugned order, we do so and the same is as follows:6.When this Court wanted to see the fresh SCN dated 24.06.2024 and the writ petitioner's response to the same by way of reply/representation dated 29.06.2024, it came to light that both have not 4/11 https://www.mhc.tn.gov.in/judis W.P. No.38421 of 2024been filed as part of the case file. They are not before us. Be that as it may, a careful perusal of the impugned order brings to light that a SCN dated 24.06.2024 has been issued, the writ petitioner/noticee has responded to the same by way of a representation dated 29.06.2024 and the impugned order has been made by R5 (who is the officer concerned) after considering the writ petitioner/encroacher's response to the fresh SCN. This means that the impugned order is clearly a final order made by the officer concerned under proviso to Section 28(2)(ii) of TN Highways Act and this Section 28 (2)(ii) reads as follows:'28.Prevention of encroachment:(1).....(2) The Highways authority or any person authorised by it in this behalf, may--(i) .....;(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.'In this view of the matter, the argument of the writ petitioner that R5 has again issued a SCN in a pre-determined manner pales into insignificance. In this regard, we notice that the impugned order is clearly captioned ',Wjp mwptpg;ghiz'/ This means it is an order under proviso to Section 28(2)(ii) of TN Highways Act. The contents of impugned order also buttresses the position that it is a final order by the officer concerned under proviso to Section 28(2)(ii) as it refers to the SCN and deals with the writ petitioner's response (representation) and the contents of the writ petitioner's response/representation. However, instead of captioning the impugned order as ',Wjp mwptpg;g[', it has been captioned as ',Wjp mwptpg;ghiz'. This passes as hypertechnicality but below the caption ',Wjp mwptpg;ghiz'. R5 has referred to 'Show Cause Notice' and beneath it, within parenthesis, has stated 'issued Under Chapter V, Sec.28(2)(ii) of Tamil Nadu Highways Act 2001'. This appears to be causing some difficulty. The impugned order is clearly neither a SCN nor a notice calling upon the writ petitioner to show cause under Section 28(2)(ii) of TN Highways Act. On the contrary, it is a final order under proviso to Section 28(2)(ii).5/11 https://www.mhc.tn.gov.in/judis W.P. No.38421 of 20247.To be noted, notwithstanding very many averments in the writ support affidavit, learned counsel for writ petitioner predicated his argument or in other words, campaigned against the impugned order on the primary ground that a fresh / further SCN has been issued in a pre-determined manner. This solitary point on which the matter was argued in the Admission Board is clearly a damp squib for reasons set out supra. In any event, we find no infirmity in the impugned order as it considers writ petitioner's response/representation and deals with the same suitably as impugned order inter alia says that writ petitioner/noticee has not produced any revenue records to demonstrate ownership regarding encroached land.8.Ergo, the sequitur is, captioned main WP fails and the same is dismissed. Consequently, captioned WMP thereat also fails and the same is also dismissed. We refrain from imposing costs considering the manner in which submissions were made in the Admission Board.'2.In the light of the undisputed common submission made by both sides, we dismiss the captioned WP and the captioned WMP thereat also as the same principle laid down in the order dated 19.12.2024 made in W.P.No.38184 of 2024 is applicable to the captioned WP and WMP also. There shall be no order as to costs.(M.S., J.) (K.R.S., J.)06.01.2025Index: Yes/NoNC: Yes/Nocad6/11 https://www.mhc.tn.gov.in/judis W.P. No.38421 of 2024To:1.The District CollectorOffice of the District CollectorCoimbatore 641 0182.The District Revenue OfficerCollectorateCoimbatore 641 0183.The Sub-CollectorOffice of the Sub-CollectorPollachi4.The TahsildarOffice of the TahsildarAnamalai 642 1045.The Assistant Divisional EngineerHighways Department(Construction & Maintenance)Vaalparai Sub-DivisionMinparai PostAttagatti 642 1016.The Executive OfficerKottur Town PanchayatKotturMalaiyandipattinamPollachi 642 1147/11 https://www.mhc.tn.gov.in/judis W.P. No.38421 of 2024M. SUNDAR, J.andK. RAJASEKAR, J.cadW.P. No.38421 of 202406.01.20258/11 https://www.mhc.tn.gov.in/judis W.P. No.38421 of 2024ADDENDUMW.P. No.38421 of 2024 & W.M.P. No.41612 of 2024M.SUNDAR, J.andK. RAJASEKAR, J.(Order of the Court was made by M.SUNDAR, J.)Captioned matter is listed today under the cause list caption 'FOR BEING MENTIONED' as appearance portion qua respondents was omitted to be typed in the order dated 06.01.2025.2.Today, Mr. S. Nagarajan, learned counsel for writ petitioner, Mr. T.K. Saravanan, learned Government Advocate for RR 1 to 5 and Mr. A.M. Ayyadurai, learned Government Advocate for R6, are before us.3.The appearance portion qua respondents which was omitted to be typed reads as follows:'For RR 1 to 5Mr. T.K. SaravananGovernment AdvocateFor R6Mr. A.M. AyyaduraiGovernment Advocate'9/11 https://www.mhc.tn.gov.in/judis W.P. No.38421 of 20244.All the aforereferred counsel on either side agreed to have the aforementioned correction made. In all other aspects, the order dated 06.01.2025 remains the same. Therefore, this order will now be made as 'Addendum' and Corrigendum / Erratum to 06.01.2025 order already pronounced in open court and already uploaded. This order will now be uploaded as 'ADDENDUM' to / along with order made by this Court on 06.01.2025 and Registry is directed to carry out necessary and consequential corrections.(M.S., J.) (K.R.S., J.)28.01.2025cad10/11 https://www.mhc.tn.gov.in/judis W.P. No.38421 of 2024M. SUNDAR, J.andK. RAJASEKAR, J.cadW.P.No.38421 of 202428.01.202511/11

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