Madras High Court
A.Indira vs The Divisional Engineer on 24 October, 2024
Author: R.Subramanian
Bench: R.Subramanian
W.P(MD)No.25646 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.10.2024
CORAM :
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P(MD)No.25646 of 2024
and
W.M.P.(MD)Nos.21754 and 21756 of 2024
A.Indira ... Petitioner
vs.
The Divisional Engineer,
National Highways,
Highways Department of
Government of Tamil Nadu,
Trichy. ... Respondent
Prayer : Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorari, calling for the records pertaining to the impugned
order passed by the respondent in Lr.No.12/Encroachment/NH210/A2/2022,
dated 21.10.2024 and quash the same.
For Petitioner : Mr.M.Saravanan
For Respondent : Mr.S.R.A.Ramachandran
Additional Government Pleader
ORDER
(Order of the Court was made by R.SUBRAMANIAN, J.)
The notice issued under Section 26(2) of the Control of National
Highways [Land and Traffic] Act, 2002, is under challenge in this Writ Petition.
https://www.mhc.tn.gov.in/judis
2. This case has a chequered history. Originally, a notice was issued by
the respondents under Section 5 of the National Highways Act, 1956. The same
was put to challenge. This Court rejected the challenge. The petitioner went on
appeal to the Hon'ble Supreme Court. The Hon'ble Supreme Court set aside the
orders of the Division Bench of this Court on the conclusion that invocation of
Section 5 of the National Highways Act, 1956, for removal of encroachments
on National Highways is impermissible and the law that is to be applied is the
Control of National Highways [Land and Traffic] Act, 2002. It was also held
that the notices for removal of encroachment shall be issued by the Highway
Administration or the Officer authorized by the Highway Administration only
and no one else. This judgment of the Hon'ble Supreme Court was dated
24.08.2021. Thereafter, notices were issued on 25.04.2022 by the Divisional
Engineer, National Highways, Highways Department, Trichy.
3. The said notices were challenged in several Writ Petitions and they
were disposed of by a common order by us on 18.04.2023. After adverting to
the provisions of Section 3(2) and Section 26 of the Control of National
Highways [Land and Traffic] Act, 2002, we had held that it is only the
Executive Engineer, who has been authorized to issue such notices and the
Divisional Engineer cannot issue notices for eviction.
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4. The contention of the learned Additional Advocate General that the
post of Divisional Engineer and the Executive Engineer are one and the same,
was specifically rejected by us. Accepting the said judgment, the Ministry of
Road Transport and Highways, Government of India, New Delhi, issued an
order authorizing the Divisional Engineers to exercise powers and functions of
the Highway Administration conferred under Sections 24, 26, 27, 30, 33, 36, 37
and 43 of the Control of National Highways [Land and Traffic] Act, 2002.
5. The said order was issued on 30.05.2024. Thereafter, the impugned
notices have been issued by the Divisional Engineer on 21.10.2024. Though
the petitioner would vehemently question the competence of the Divisional
Engineer to issue such notices, we are unable to sustain the said submission in
view of the fact that the Divisional Engineer has been authorised to exercise the
powers of Highway Administration, by the order dated 30.05.2024. However,
we find that the provisions of Section 26 of the Control of National Highways
[Land and Traffic] Act, 2002, have not been scrupulously followed. Section 26
of the Control of National Highways [Land and Traffic] Act, 2002, prescribes
an elaborate procedure for removal of encroachments. The said provision reads
as follows:-
''26.Removal of unauthorised occupation.—(1)
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Where the Highway Administration or the officer
authorised by such Administration in this behalf is of the
opinion that it is necessary in the interest of traffic safety
or convenience to cancel any permit issued under sub-
section (2) of section 24, it may, after recording the
reasons in writing for doing so, cancel such permit and,
thereupon, the person to whom the permission was granted
shall, within the period specified by an order made by the
Highway Administration or such officer restore the portion
of the Highway specified in the permit in such condition as
it was immediately before the issuing of such permit and
deliver the possession of such portion to the Highway
Administration and in case such person fails to deliver
such possession within such period, he shall be deemed to
be in unauthorised occupation of highway land for the
purposes of this section and Section 27.
(2) When, as a result of the periodical inspection of
highway land or otherwise, the Highway Administration
or the officer authorised by such Administration in this
behalf is satisfied that any unauthorised occupation has
taken place on highway land, the Highway
Administration or the officer so authorised shall serve a
notice in a prescribed form on the person causing or
responsible for such unauthorised occupation and to
restore such highway land in its original condition as
before the unauthorised occupation within the period
specified in the notice.
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(3) The notice under sub-section (2) shall specify
therein the highway land in respect of which such notice
is issued, the period within which the unauthorised
occupation on such land is required to be removed, the
place and time of hearing any representation, if any,
which the person to whom the notice is addressed may
make within the time specified in the notice and that
failure to comply with such notice shall render the
person specified in the notice liable to penalty, and
summary eviction from the highway land in respect of
which such notice is issued, under sub-section (6).
(4) The service of the notice under sub-section (2)
shall be made by delivering a copy thereof to the person to
whom such notice is addressed or to his agent or other
person on his behalf or by registered post addressed to the
person to whom such notice is addressed and an
acknowledgment purporting to be signed by such person
or his agent or other person on his behalf or an
endorsement by a postal employee that such person or his
agent or such other person on his behalf has refused to
take delivery may be deemed to be prima facie proof of
service.
(5) Where the service of the notice is not made in the
manner provided under sub-section (4), the contents of the
notice shall be advertised in a local newspaper for the
knowledge of the person to whom the notice is addressed
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and such advertisement shall be deemed to be the service
of such notice on such person.
(6) Where the service of notice under sub-section
(2) has been made under sub-section (4) or sub-section
(5) and the unauthorised occupation on the highway land
in respect of which such notice is served has not been
removed within the time specified in the notice for such
purpose and no reasonable cause has been shown before
the Highway Administration or the officer authorised by
such Administration in this behalf for not so removing
unauthorised occupation, the Highway Administration or
such officer, as the case may be, shall cause such
unauthorised occupation to be removed at the expenses
of the Central Government or the State Government, as
the case may be, and impose penalty on the person to
whom the notice is addressed which shall be five hundred
rupees per square meter of the land so unauthorisedly
occupied and where the penalty so imposed is less than
the cost of such land, the penalty may be extended equal
to such cost.
(7) Notwithstanding anything contained in this
section, the Highway Administration or the officer
authorised by such Administration in this behalf shall have
power without issuing any notice under this section to
remove the unauthorised occupation on the highway land,
if such unauthorised occupation is in the nature of—
(a) exposing any goods or article—
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(i) in open air; or
(ii) through temporary stall, kiosk, booth or any
other shop of temporary nature,
(b) construction or erection, whether temporary or
permanent, or
(c) trespass or other unauthorised occupation which
can be removed easily without use of any machine or other
device,
and in removing such occupation, the Highway
Administration or such officer may take assistance of the
police, if necessary, to remove such occupation by use of
the reasonable force necessary for such removal.
(8) Notwithstanding anything contained in this
section, if the Highway Administration or the officer
authorised by such Administration in this behalf is of the
opinion that any unauthorised occupation on the land is of
such a nature that the immediate removal of which is
necessary in the interest of—
(a) the safety of traffic on the Highway; or
(b) the safety of any structure forming part of the
Highway,
and no notice can be served on the person responsible for
such unauthorised occupation under this section without
undue delay owing to his absence or for any other reason,
the Highway Administration or the officer authorised by
such Administration may make such construction including
alteration of any construction as may be feasible at the
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prescribed cost necessary for the safety referred to in
clause (a) or clause (b) or have such unauthorised
occupation removed in the manner specified in subsection
(7).
(9) The Highway Administration or an officer
authorised by such Administration in this behalf shall, for
the purposes of this Section or Section 27, have the same
powers as are vested in a Civil Court under the Code of
Civil Procedure, 1908 (5 of 1908), while trying a suit, in
respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any
person and examining him on oath;
(b) requiring the discovery and production of
documents;
(c) issuing commissions for the examination of
witnesses; and
(d) any other matter which may be prescribed,
and any proceeding before such Administration or officer
shall be deemed to be a judicial proceeding within the
meaning of Sections 193 and 228, and for the purpose of
Section 196, of the Indian Penal Code (45 of 1860) and the
Administration or the officer shall be deemed to be a Civil
Court for the purposes of Section 195 and Chapter XXVI
of the Code of Criminal Procedure, 1973 (2 of 1974).''
[Emphasis supplied]
https://www.mhc.tn.gov.in/judis
6. A reading of the above provision lays down the procedure that is to be
followed by the officer authorized by the Highway Administration in removal
of encroachments.
● Section 26(2) of the Control of National Highways [Land and
Traffic] Act, 2002 requires the Officer to issue notice to persons,
who are responsible for unauthorized occupation requiring him to
remove such unauthorized occupation.
● Section 26(3) of the Control of National Highways [Land and
Traffic] Act, 2002 sets out the contents of the said notice. It
requires notice to disclose,
(a) the Highway land in respect of which the notice is issued;
(b) the period within which the unauthorized occupation of such land was
required to be removed;
(c) the time within which the noticee is required to submit his objections;
(d) the place and time of hearing of any representation, which is made
pursuant to the notice by the noticee; and
(e) it also states that the notice shall inform the noticee that failure to
comply with the notice will render the person liable to penalty and summary
eviction under sub-section (6).
https://www.mhc.tn.gov.in/judis
7. Sub-section (4) of Section 26 of the Control of National Highways
[Land and Traffic] Act, 2002, prescribes the mode of service of the notice. Sub-
section (5) prescribes an alternate mode of service, if service under sub-section
(4) is not possible. Sub-section (6) provides for consideration of the cause that
is shown by the noticee and enables the Administration or the Officer
authorized by the Highways Department to remove the encroachment if the
explanation is not satisfactory.
8. The above would show that Section 26 of the Control of National
Highways [Land and Traffic] Act, 2002, contemplates an opportunity to be
given to the person to show cause against the proposed eviction. It also imposes
an obligation on the Officer authorized by the Highway Administration to hear
the person, if he objects to the notice and pass orders after hearing the
objections. The impugned notice, dated 21.10.2024, is not in compliance with
the provisions of Section 26 of the Control of National Highways [Land and
Traffic] Act, 2002. The steps that are prescribed under sub-sections 2 and 3
have been completely overlooked and the Officer has passed an order for
eviction under sub-section (6) straightaway. Hence, we are unable to sustain
the notice.
https://www.mhc.tn.gov.in/judis
9. The notice is, therefore, quashed. The Writ Petition will stand
allowed. It will be open to the respondents to proceed strictly in accordance
with law as indicated above. No costs. Consequently, connected Miscellaneous
Petitions are closed.
(R.S.M, J.) (L.V.G, J.)
24.10.2024
Index : No
Neutral Citation : No
smn2
To
The Divisional Engineer,
National Highways,
Highways Department of
Government of Tamil Nadu,
Trichy.
https://www.mhc.tn.gov.in/judis
R.SUBRAMANIAN, J.
and
L.VICTORIA GOWRI, J.
smn2
ORDER MADE IN
DATED : 24.10.2024
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