IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.04.2025 CORAM:

THE HONOURABLE MR.JUSTICE M.SUNDAR and THE HONOURABLE MRS. JUSTICE K. GOVINDARAJAN THILAKAVADI W.P. No.12764 of 2025 and W.M.P.No.14334 of 2025

1. Palanisamy

2. Deivathal Petitioners vs.

1. The Divisional Engineer Construction & Maintenance Highways Department College Road Tiruppur District

2. The Assistant Divisional Engineer Construction and Maintenance Highways Department Palladam Tiruppur District

3. The Assistant Engineer Construction and Maintenance Highways Department Palladam Tiruppur District

4. Anbarasu Respondents Writ Petition filed under Article 226 of the Constitution of India seeking a writ of certiorari to call for the records of impugned order dated 12.03.2025 vide proceedings in Ka.No.Manu/2025/Uu on the file of the second respondent and quash the same.

For petitioner Mr. K. Myilsamy For RR 1 to 3 Mr. V. Ravi

ORDER

[made by M. SUNDAR, J.]

Captioned main 'writ petition' (hereinafter 'WP' for the sake of brevity) has been preferred seeking a writ of certiorari qua a letter dated 12.03.2025 bearing reference Ka.No.Manu/2025/Uu issued by R2 (Assistant Divisional Engineer) {hereinafter 'impugned letter' for the sake of convenience and clarity}. In and vide impugned letter, the writ petitioners have been directed to remove alleged encroachment made by them in land belonging to Highways Department, within a week.

2. Mr. K. Myilsamy, learned counsel on record for writ petitioners, submitted that the impugned letter straightaway calls upon writ petitioners to remove the alleged encroachment without show causing them.

3. Issue notice to RR 1 to 3 (official respondents). Notice to R4 is dispensed with inasmuch as this order will not touch upon the rights of R4 much less be prejudicial to the interest of R4. On the contrary, rights of R4 will stand preserved as would be set out elsewhere infra in this order.

4. Mr. V. Ravi, learned Special Government Pleader, accepts notice for RR 1 to 3 and submits that the writ petitioners have encroached upon the land belonging to the Highways Department and that has necessitated the impugned letter.

5. From a perusal of the impugned letter, it is evident that pursuant to the complaint made by R4 (private respondent) stating that the writ petitioners have encroached upon land belonging to the Highways Department, vide the impugned letter, the writ petitioners have been directed to remove the alleged encroachment made by them within seven days. Further, in the impugned letter, there is no reference to any provision of law under which the same has been made.

6. As regards prevention of encroachment in a State Highway and / or removal of any encroachment in a State Highway, 'the Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002)' (hereinafter 'said Act' for the sake of brevity) comes into play. The most relevant provision qua case on hand is Section 28 and the same, in its entirety, 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 rep