Madras High Court
P.Gunasekaran vs The Divisional Engineer on 18 April, 2023
W.P(MD)No.8659 of 2022 etc., batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P(MD)Nos.8659, 8923 to 8928, 8936, 8943, 8990, 9654, 9655,
28606 and 2022
and
W.M.P(MD)Nos.22594, 22635, 22593, 22597, 22598, 22629, 22595,
22596, 22631 of 2022
W.P(MD)No.8659 of 2022:
P.Gunasekaran .... Petitioner
-vs-
1.The Divisional Engineer,
National Highways,
Highways Department,
Trichy.
2.Prabhakaran,
Assistant Engineer,
National Highways, Highways Department,
Trichy.
3.TPC Infra and Green Energies Trichy,
No.1, 1st Cross, IRWO Rail Vihar,
K.K.Nagar, Tiruchirapalli 620 021.
(R2 impleaded vide Court order dated,
27.04.2022 in W.P(MD)No.8659/2022 by
PUJ & RVJ)
(R3 is impleaded by RMDJ & JSNPJ) ... Respondents
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W.P(MD)No.8659 of 2022 etc., batch
PRAYER: Petition filed under Article 226 of the Constitution of India,
seeking for issuance of a Writ of Certiorari, calling for the records
pertaining to the impugned notice issued by the respondent in
Lr.No.12/Encroachment/NH210/A2/2022, dated 25.04.2022 and quash
the same.
For Petitioner : Mr.R.Subramanian for
Mr.M.Saravanan
For R-1 : Mr.R.Baskaran,
Additional Advocate General assisted by
Mr.V.Nirmal Kumar,
Government Advocate
For R-2 : No Appearance
For R-3 : Ms.A.L.Gandhimathi, Senior Counsel for
Mr.C.Mahadeven
COMMON ORDER
[Order of the Court was made by R.SUBRAMANIAN, J.]
The only point raised by the learned counsel appearing for the
petitioners is that the impugned notices have not been issued by the
competent authority.
2. A perusal of the impugned notices would show that they have
been issued by the Divisional Engineer, National Highways, Trichy, under
Section 26(2) of the Control of National Highways(Land and Traffic) Act,
2002.
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W.P(MD)No.8659 of 2022 etc., batch
3. While Mr.R.Subramanian and Mr.Mahaboob Athiff, learned
counsel appearing for the petitioners, would contend that the notification
issued by the Central Government on 16.09.2019, in exercise of powers
conferred under Sub-Section 2 of Section 3 of the Control of National
Highways (Land and Traffic) Act, 2002, the Central Government specifically
designates the Executive Engineer of the National Highways Wing of the
State Public Works Department. When the Highway Administration had
empowered the Executive Engineer to exercise the power conferred on the
Highway Administration under Section 24, 26, 27, 30, 33, 36 and 43 of the
said Act, the impugned notices issued by the Divisional Engineer are
improper.
4. Earlier, the eviction notices were issued under the State Highways
Act and when the same were subject to challenge, this Court held that
they are only show-cause notices and jurisdictional issue can also be
agitated before the authorities concerned. When the said judgment was
taken up on appeal before the Hon'ble Supreme Court in Civil
Appeal No.4946 of 2021, the Hon'ble Supreme Court by its judgment dated
24.08.2021, held that the authorisation issued under Section 5 of the Act
of 1956, namely, the National Highways Act, will not enable the removal of
encroachments under Section 26 of the Control of National Highways
(Land and Traffic) Act, 2002. The Hon'ble Supreme Court quashed the said
notices and held that a proper Officer authorised by the Central
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W.P(MD)No.8659 of 2022 etc., batch
Government would alone be competent to issue the notices. After the
judgment of the Hon'ble Supreme Court, the impugned notices have been
issued by the Divisional Engineer.
5. The learned Additional Advocate General would vehemently
contend that the post of Divisional Engineer and Executive Engineer are
one and the same. There is no post of Executive Engineer in the National
Highways Wing of the State Public Works Department. Therefore, the
Divisional Engineer is competent to issue notice.
6. We are unable to agree with such submission of the learned
Additional Advocate General. The very decision of the Hon'ble Supreme
Court in Civil Appeal No.4946 of 2021, requires us to reject the submission
of the learned Additional Advocate General. The Hon'ble Supreme Court
has pointed out that when a specific authority is vested with the power to
remove the encroachment under a specific provision, the powers shall be
exercised by such authority alone and not by any other authority under
the colour of any power vested in it under a notification. When it was
contended before the Hon'ble Supreme Court that a notification under
Section 5 of the National Highways Act, 1956, would enable the Officer
authorized to exercise the jurisdiction under Section 26 of 2002 Act, the
same was repelled by the Hon'ble Supreme Court, on the ground that when
a particular provision requires a power to be conferred on a particular
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W.P(MD)No.8659 of 2022 etc., batch
Officer to take proceedings under a particular Section, proceedings under
that Section can be taken only by such Officer not by any other Officer.
Section 26(2) of 2002 Act, enables the action to be taken by the Highway
Administration or the Officer authorized by such Administration. It is
conceded that no Officer has been authorized by the Highway
Administration to take action under Section 26 of 2002 Act. Therefore, it
is only the Highway Administration that could take action. As per the
notification under sub-section (2) of Section 3 of 2002 Act, the competent
authority is the Executive Engineer and not the Divisional Engineer. If
there is no post of Executive Engineer in the National Highways Wing of
the State Public Works Department, it is not for this Court to step in to
substitute any other authority in the place of the authority, who has been
nominated by the Central Government. Therefore, the impugned notices
having been issued by the unauthorized Officer are liable to be quashed.
Accordingly, the impugned notices are quashed.
7. The writ petitions stand allowed. No Costs. Consequently,
connected miscellaneous petitions are closed.
[R.S.M., J.] [L.V.G., J.]
18.04.2023
NCC :Yes/No
Index :Yes/No
PM
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https://www.mhc.tn.gov.in/judis
W.P(MD)No.8659 of 2022 etc., batch
R.SUBRAMANIAN, J.
and
L.VICTORIA GOWRI, J.
pm
W.P(MD)Nos.8659 of 2022(batch)
18.04.2023
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