The court ruled that a notice regarding encroachment must be treated as a Show Cause Notice, requiring a response before any coercive action can be taken.

ORDER :

M. SUNDAR, J.

1. Captioned main 'Writ Petition' (hereinafter 'WP' for the sake of brevity) has been filed with a prayer for issue of certiorarified mandamus. Certiorari limb of the prayer assails a 'notice dated 19.12.2023 bearing reference  issued by R2 [Assistant Divisional Engineer (Highways), Construction and Maintenance, Ambattur Sub Division, Avadi, Chennai-600 054]' (hereinafter 'impugned notice' for the sake of convenience and clarity). Mandamus limb is a consequential prayer seeking a mandamus to forbear the respondents from taking coercive action pursuant to impugned notice i.e., coercive action such as demolition of structures, disconnection of electricity service connection etc.

2. A scanned reproduction of the impugned notice is as follows:

3. Adverting to the aforementioned impugned notice, Mr.V.Raghavachari, learned senior counsel appearing on behalf of /instructed by learned counsel on record for writ petitioner Mr.N.R.Anantha Rama Krishnan submitted that the writ petitioner has not been show caused.

4. Mr.T.K.Saravanan, learned Additional Government Pleader appearing for all the respondents submitted on instructions that the impugned notice has been issued under Section 28 of 'The Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002)' [hereinafter 'said Act' for the sake of convenience and clarity] as according to learned State counsel, there is encroachment.

5. We carefully considered the submissions made by both sides.

6. Section 28 of said Act reads as follows:

'28.Prevention of encroachment:

(1) The Highways Authority 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 Highways authority or any person authorised by it in this behalf, may--

(i) remove, without any notice, any movable temporary structure, enclosure, stall, booth, any article whatsoever hawked, exposed or displayed for sale or any other 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.'

7. There is no disputation before this Court that what is sought to be removed as an encroachment in the case on hand is an immovable structure. Therefore, Section 28(2)(ii) of said Act and the proviso thereat come into play. This means that the writ petitioner ought to be show caused vide a Show Cause Notice (SCN) returnable in seven days and if any representation is made within seven days time frame, the same shall be considered by the authority or officer concerned and 'final orders' have to be made.

8. Therefore, this Court is of the considered view that it will serve the ends of justice if the impugned notice is not dislodged but it is directed to be treated as an SCN within the meaning of Section 28(2)(ii) of said Act, permit the writ petitioner to respond within seven days from today and make it clear that the authority or officer concerned shall pass 'final orders' after considering such representation. Before we write the operative portion of the order in this regard, we deem it appropriate to write that Section 28 notice can be issued either by a 'Highways Authority' or 'any person authorised by it'. Highways Authority is defined vide Section 2(13) of said Act which takes us to Section 5(2) which read as follows:

Section 2(13) of said Act:

'2(13): "Highways Authority" means the officer a