The court emphasized the necessity for authorized personnel to issue eviction notices under the Control of National Highways Act, adhering to procedural requirements to ensure the validity of such actions.

ORDER :

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.

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.

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) 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 unauthorise