Mumoorthy v. The District Collector

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.06.2025 CORAM: THE HONOURABLE MR. JUSTICE M.SUNDAR and THE HONOURABLE MR. JUSTICE HEMANT CHANDANGOUDAR and W.M.P. Nos.32723, 32731, 32733, 32734, 32735 & 32737 of 2024 Mumoorthy Petitioner in W.P.No.30013/2024 Gomathi Petitioner in W.P.No.30025/2024 C. Madhiyazhagan Petitioner in W.P.No.30026/2024 Pandian Petitioner in W.P.No.30028/2024 A. Kumudham Petitioner in W.P.No.30029/2024 R. Madhiyazhagan Petitioner in W.P.No.30031/2024 vs.

¶1The District Collector Cuddalore Disrict

¶2The Revenue Divisional Officer Chidambaram Cuddalore District

¶3The Tahsildar Bhuvanagiri Taluk Cuddalore District Page Nos.1/8

¶4The Executive Officer Boothankudi Panchayat Chidambaram Taluk Cuddalore District

¶5The Divisional Engineer Construction & Maintenance State Highways Department Chidambaram Division Cuddalore District

¶6The Assistant Divisional Engineer State Highways, Chidambaram Zone Chidambaram Cuddalore District Respondents in all WPs Writ Petitions filed under Article 226 of the Constitution of India praying to issue a writ of certiorari to call for the records relating to the impugned orders passed by the sixth respondent in Che.Mu.Ka. No.40/2024EnEEU/dated 16.09.2024 and quash the same. For petitioner Mr. S. Senthilnathan in all WPs For RR 1 to 6 Mr. T.K. Saravanan in all WPs Addl. Government Pleader For intervenor in W.P.Nos.30013, 30026 & 30028/ Mr. S. Sarath Kumar 2024 - - - Page Nos.2/8 COMMON ORDER [made by M.SUNDAR, J.] This common order will govern the captioned six main 'writ petitions' [hereinafter 'WPs' for the sake of brevity] and the captioned 'writ miscellaneous petitions' [hereinafter 'WMPs' for the sake of brevity] thereat.

¶2The entire proceedings are under Section 28 of 'the Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002)' [hereinafter 'said Act' for the sake of brevity]. The said Act was amended in and vide 'the Tamil Nadu Highways (Amendment) Act, 2024 (Act 11 of 2024) with effect from 07.03.2024 and post amendment, Section 28 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 Page Nos.3/8 whatsoever hawked, exposed or displayed for sale or any 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.'

¶3Mr. S. Senthilnathan, learned counsel on record for writ petitioners, Mr. T.K. Saravanan, learned Additional Government Pleader for respondents and Mr. S. Sarath Kumar, learned counsel for intervenor, are present before us.

¶4This Court, with the consent of the aforementioned learned counsel, took up the captioned main WPs and heard out the same.

¶5Though myriad points have been raised, we find that the matter turns on a short issue. The short issue is, though the writ petitioners were show caused vide show cause notices (SCNs) dated

05.09.2024 as required under Section 28(2)(ii) and though the writ Page Nos.4/8 petitioners responded by producing documents on 13.09.2024, there is no discussion in the impugned orders about writ petitioners' version or the documents produced by the writ petitioners. To be noted, the impugned orders refer that the writ petitioners who are noticees qua SCNs have produced documents and the relevant paragraph (both in vernacular as well in English) reads as follows: 'nkw;go jh';fs; mspj;j Mtz';fspd; mog;gilapy; tUtha; tl;lhl;rpah;. rpjk;guk; mth;fs; mspj;j tiuglk; kw;Wk; mwpf;ifapid Ma;t[ bra;jjpy; nkw;go ,lk; beL";rhiyj; Jiwf;F brhe;jkhd ,lj;jpy; Mf;fpukpg;g[ bra;ag;gl;Ls;sJ vd bjhpa tUfpwJ/' 'Further in considering the documents submitted by you and the report and survey sketch submitted by the Tahsildar, Chidambaram, it is found that you have encroached the above land belongs to Highways Department.'

¶6Proviso to Section 28(2)(ii) makes it clear that 'any representation' shall be considered 'by authority or officer concerned' before passing 'final orders'. Impugned orders are 'final orders' within the meaning of proviso to Section 28(2)(ii). Representations of writ petitioners made on 13.09.2024 have been adverted to in the impugned orders but not considered. We dislodge the impugned orders on this short point. Page Nos.5/8

¶7Be that as it may, as the proviso to Section 28(2)(ii) talks about 'any representation', we make it clear that it is open to the intervenor to send a representation within a week from today, i.e., on or before 04.07.2025 and if the intervenor chooses to do so, such representation shall also be considered by the 'authority or officer concerned' before making final orders afresh. We make it clear that if the intervenor does not send a representation within seven days, 'the authority or officer concerned' need not await the representation of the intervenor and can proceed in accordance with law.

¶8Before we part with the matter, we find that the impugned orders have been made by R6 (Assistant Divisional Engineer). In the light of amended Section 28, the issue qua jurisdiction and competence is left open but we preserve the rights and contentions of the respondents to ensure that the competent authority qua amended Section 28 embarks upon the quasi judicial drill qua Section 28. Page Nos.6/8

¶9Captioned WPs are allowed, albeit with preservation of rights in the aforesaid manner, with the aforesaid observations and liberty qua intervenor. In the light of the impugned orders being dislodged, captioned WMPs become otiose and the same are disposed of as closed. There shall be no order as to costs. (M.S., J.) (H.C., J.)

27.06.2025 cad Index: Yes/No N.C. : Yes/No Page Nos.7/8

M.SUNDAR, J. and

HEMANT CHANDANGOUDAR, J. cad To

¶1The District Collector Cuddalore Disrict

¶2The Revenue Divisional Officer Chidambaram Cuddalore District

¶3The Tahsildar Bhuvanagiri Taluk Cuddalore District

¶4The Executive Officer Boothankudi Panchayat Chidambaram Taluk Cuddalore District

¶5The Divisional Engineer Construction & Maintenance State Highways Department Chidambaram Division Cuddalore District

¶6The Assistant Divisional Engineer State Highways, Chidambaram Zone Chidambaram Cuddalore District Common order in W.P.Nos.30013, 30025, 30026, 30028, 30029 and 30031 of 2024

27.06.2025 Page Nos.8/8