The central legal point established is the conflict of jurisdiction between the Land Encroachment Act and the Highways Act, leading to the invalidity of the impugned notice and the direction for a fresh notice under the Highways Act.

M. Venugopal, J.

The Petitioner has preferred the instant Writ Petition praying for passing of an order by this Court in calling for the records relating to the impugned order made by the 2nd Respondent in his proceedings in Se.Mu.Ka.No.45/2017/U dated 25.10.2017 and quash the same as illegal.

2. Heard both sides. No Counter-affidavit is filed on the side of First and Second Respondents.

3. By consent, the main Writ Petition itself is taken up for final disposal.

4. The Petitioner has come out with the plea that the Subordinates of the Second Respondent made an endeavour to encroach into his patta land, claiming that the same is an extent of a part of the road vested in the Highways Department. Therefore, he had approached this Court in W.P(MD)No.18724 of 2013, seeking a Writ of Mandamus to forbear the Respondents from interfering with the Petitioner's 'Hotel Premises' without affording an opportunity of hearing. In the said Writ Petition, on behalf of the State, it was submitted that it was a routine survey and they had not concluded the Petitioner's land to be an encroachment. Accordingly, the said Writ Petition was closed on 02.12.2013.

5. At this juncture, the Learned Counsel for the Petitioner brings it to the notice of this Court that to the shock and surprise of the Petitioner, he had received the impugned order of eviction on 28.10.2017 dated 25.10.2017 passed by the Second Respondent, wherein it is among other things mentioned that a small portion of the Car Park is an encroachment in the road margin belonging to the Highways. Resultantly, the Petitioner was called upon to evict and to hand over the possession within 25 days, failing which, the Hotel Premises would be forcibly evicted at their costs.

6. The Learned Counsel for the Petitioner strenuously contends that the impugned order dated 25.10.2017 is per se illegal, because of the reason that in respect of proceedings for eviction of encroachment under the Tamil Nadu Land Encroachment Act, 1905, an action can be initiated only by the District Collector or the Thasildar and the Highways Authority. In substance, it is the submission of the Learned Counsel for the Petitioner that the Second Respondent/Assistant Divisional Engineer, State Highways Department, Kodaikanal, Dindigul District, has no jurisdiction to exercise the powers conferred under Section 6 and 7 of the Tamil Nadu Land Encroachment Act, 1905.

7. The Learned Counsel for the Petitioner takes a plea that even if it is assumed without admitting that the Second Respondent/Assistant Divisional Engineer, State Highways Department, Kodaikanal, Dindigul District, has jurisdiction, the impugned order/notice dated 25.10.2017, cannot be sustained for the simple reason that the Act of 1905, warrants issuance of Section 7 notice first, by way of show-cause and only on being dissatisfied with the explanation if any, the powers under Section 6 of the Act, can be invoked to order eviction. In fact, the Learned Counsel for the Petitioner points out that the impugned order/notice dated 25.10.2017, is a combination of one issued under Sections 6 and 7 of the Act, together and therefore, the impugned order in question is Prima Facie an illegal one and besides, the same does not sustain a scrutiny in the eye of Law.

8. The Learned Counsel for the Petitioner adds in his contentions that even if the road belongs to the State Highway has been encroached by the Petitioner, the same can only be removed by invoking the provisions of the Tamil Nadu State Highways Act, 2001, as the said Law is a Special Legislation and would prevail over the Tamil Nadu Land Encroachment Act, 1905, which is a General Legislation. That apart, it is projected on the side of the Petitioner that in regard to the ingredients of Sections 28 to 30 of the Tamil Nadu Highways Act, 2001, the same occupies the field in respect of removal of encroachment. In short, the stand of the Petitioner is that by no stretch of imagination, the ingredients of Tamil Na