Gunasekaran vs Divisional Engineer National Highways & Ors

K. M. JOSEPH, J

Leave granted.

(1) Dr. Joseph Aristotle, learned counsel, appears and accepts notice on behalf of the respondents in Civil Appeal No. 4948 of 2021 (arising out of

SLP (C)No. 12587 of 2021) and Civil Appeal No. 4949 of 2021 (arising out of SLP (C)No. 12947 of 2021).

(2) The appellants in these cases filed writ petitions wherein they mounted challenge to the show cause notices issued by the respondents. The High

Court, by the impugned judgment, did not interfere with the impugned notices noting that the appellants have not attributed any malafides andtheir writ

petitions were accordingly, dismissed.

However, in paragraph 15 it held as follows:

“15. However, it is open to the petitioners to offer their explanation to the impugned show cause notices to the respondents, within a period of ten

days from the date of receipt of copy of this order and if any explanation is offered by the petitioners, the 2nd respondent shall consider the same and

pass orders within a period of two weeks from the date of receipt of their explanation and thereafter, shall proceed further. No costs. Consequently,

connected miscellaneous petitions are also dismissed.â€​

The dispute lies essentially in a narrow compass. The allegation raised in the show cause notices is to the effect that the appellants have encroached

upon the property comprising in the ‘National Highway’ in question. The case set up by the appellants before the High Court was that the

notices have been issued, purporting to be under Section 28(2)(ii) of the Tamil Nadu State Highway Act, 2001 (hereinafter referred to as State Act,

2001, for brevity).

It was contended that the said enactment had become void in view of the enactment of the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013. It was expatiated and is contended that the authority under the State Act, 2001, did not have

the jurisdiction in the matter of dealing with the alleged encroachments over the National Highway.

The High Court notices that though the road actually belongs to the National Highways Department, the construction and maintenance of the road

was under the supervision and control of the officer of the National Highways Wing, Highways Department, Government of Tamil Nadu. Noticing

that since the subject matter of the road is under the maintenance and supervision of the National Highways Wing, Highways Department,

Government of Tamil Nadu, the Court did not find any error in the impugned notices. It is further noted that there were 326 encroachers in the said

Highway and such encroachments were identified after survey and notices were issued. It was further observed that the impugned notices are only

show cause notices, which are normally not interfered with, except for lack of jurisdiction of the authority or if malafides is attributed. Accordingly the

writ petitions were dismissed as noticed.

(3) We have heard Shri B. Karunakaran, learned counsel for the appellants, and Shri V. Krishnamurthy, learned Additional Advocate General for the

State.

(4) In the appeals, the appellants persisted with the complaint that the notices have been issued under the State Act, 2001. It is the case of the

appellants that the officer who issued the notices, could not possibly have seized at, power to purport to remove the alleged encroachment in the

National Highway.

(5) The contention on the other hand of the State as articulated by Shri V. Krishnamurthy, learned AdditionalAdvocate General for the State of Tamil

Nadu, is that notification has been issued under Section 5 of the National Highways Act, 1956 (hereinafter referred to as ‘Act of 1956’ for

brevity) and the roads in question where the encroachments have taken place are covered by the notification. It is the contention of the respondents

that the officer, therefore, who has issued notices purportedly under the State Act, did have jurisdiction, as correctly found by the High Court.

(6) If we notice the statutory framework of the Act of 1956, this Act provides in Section 5 as follows:

Responsibility for development and maintenance of national highways.â€"It shall be the responsibility of the Central Government to develop and

maintain in proper repair all national highways; but the Central Government may, by notification in the Official Gazette, direct that any function in

relation to the development or maintenance of any national highway shall, subject to such conditions, if any, as may be specified in the notification, also

be exercisable by the Government of the State within which the national highway is situated or by any officer or authority subordinate to the Central

Government or to the State Government.

There is undoubtedly a notification issued under Section 5 in this case.

(7) If matters stood thus, perhaps it could be contended that the power comprised in the section has been delegated to the author of the notices in

these cases and which extended to the removal of encroachments over the National Highway. We must further notice that in fact, Section 5 speaks

about the responsibility of the Central Government to develop and maintain in proper repair the National Highways. It also provides, undoubtedly, that

any function in relation to the development and maintenance of any National Highway shall, subject to such conditions, as may be specified in the

notification, also be exercisable by the Government of the State within which the national highway is situated or by any officer or authority subordinate

to the Central Government or to the State Government. It is in terms of this power that the notification relied upon by the respondent-State has been

issued viz., it provides for the functions relating to development or maintenance of the National Highway. The legislature however, has not stood still.

In the year 2002, new legislation was churned out viz., The Control of National Highways (Land and Traffic) Act, 2002 (hereinafter referred to as

‘Act of 2002’ for brevity). The following is the statement of objects and reasons:

“1. At present, the National Highways are governed by the National Highways Act, 1956 and the National Highways Authority of India Act, 1988.

These enactments contain provisions for declaration of the National Highways and for the constitution of the National Highways Authority of India for

the development, maintenance and management of the National Highways and the matters connected therewith. However, these enactments do not

give powers to the Central Government to prevent or remove encroachments on land under the National Highways/or to restrict access to them from

the adjacent land, or to regulate traffic movement of any category of vehicles or animals on the National Highways. The provisions in the existing law

and in the Code of Civil Procedure, 1908 have not proved effective in view of dilatory tactics adopted by the private parties to defeat the purposes of

these Acts. In order to deal effectively with these problems, it is imperative to vest the Central Government with necessary powers through the

Highway Administration.

National Highways are rapidly getting congested and choked by undesirable roadside developments and encroachments. In fact, encroachments

make further widening of the existing roads in response to growing traffic, very difficult and costly, and often, impossible. The result is that the main

traffic on the National Highways is subjected to a lot of hardship and there is widespread criticism about the deteriorating level of service.

The absence of legislation empowering the competent authority to remove encroachments on the National Highways has resulted in shops, hotels,

tea stalls, repair shops, petrol pumps, weigh bridge, residences and commercial establishments extending their activities right on the National Highways

land.

Highway authorities do not have either power to regulate traffic coming on the National Highways or to control the number of access roads joining

the highways. All this leads to failure of roads and bridges caused by overloading, increased congestion, waste of fuel, reduced speed, high incidents of

accidents, increased vehicle operating costs and unhealthy and unhygienic conditions. It has been also observed that highways are frequently dug up

by utility organisations which put the traffic on highways in danger. The highway authorities have no adequate legal authority to prevent such

nuisances.â€​

(8) Section 3 provides for the establishment of Highways Administration. It reads as follows:

Establishment of Highway Administrations.â€"(1) The Central Government shall, by notification in the Official Gazette,â€

(a) establish, for the purposes of this Act, a body or authority consisting of one or more officers of the Central Government or the State Government

to be known as Highway Administration to exercise powers and discharge functions conferred on it under this Act; and

(b) define the limits of the Highway within which,

or the length of Highway on which, a Highway Administration shall have jurisdiction:

Provided that the Central Government may, in the notification issued under this sub-section or by any general or special order, impose any condition or

limitation subject to which a Highway Administration shall exercise powers and discharge functions conferred on it under this Act.

(2) The Central Government may establish one or more Highway Administrations for a State or Union territory or for a Highway under sub-section

(1).

(3) Subject to the provisions of this Act, the Highway Administration shall exercise powers and discharge functions conferred on it under this Act in

such manner as may be prescribed.

(9) Section 4 provides for powers and functions of Highway Administration:

Powers and functions of Highway Administration.â€"A Highway Administration shall exercise powers and discharge functions throughout its

jurisdiction specified under this Act subject to such conditions or limitations as may be imposed by the notification issued under sub-section (1) of

section 3 and by any general or special order made in this behalf by the Central Government.

(10) Chapter III deals with prevention of unauthorised occupation of Highway land and under Section 23, the Highway land is deemed to be the

property of the Central Government. Section 24 inter alia provides for prevention of occupation of any person of any Highway land or discharge of

any material through drain on such land without obtaining prior permission, for such purpose in writing, of the Highway Administration or any officer

authorised by such administration.

(11) Section 26 dealing with the removal of unauthorised occupation, reads as follows:

Removal of unauthorised occupation.â€"(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 unauthorised occupation of highway land for the purposes

of this section and section 27.

(2) When, as a result of the periodical inspection of highway land or otherwise, the Highway Administration or the officer authorised by such

Administration in this behalf is satisfied that any unauthorised occupation has taken place on highway land, the Highway Administration or the officer

so authorised shall serve a notice in a prescribed form on the person causing or responsible for such unauthorised occupation requiring him to remove

such unauthorised occupation and to restore such highway land in its original condition as before the unauthorised occupation within the period

specified in the notice.

(3) The notice under sub-section (2) shall specify therein the highway land in respect of which such notice is issued, the period within which the

unauthorised occupation on such land is required to be removed, the place and time of hearing any representation, if any, which the person to whom

the notice is addressed may make within the time specified in the notice and that failure to comply with such notice shall render the person specified in

the notice liable to penalty, and summary eviction from the highway land in respect of which such notice is issued, under sub-section (6).

(4) The service of the notice under sub-section (2) shall be made by delivering a copy thereof to the person to whom such notice is addressed or to his

agent or other person on his behalf or by registered post addressed to the person to whom such notice is addressed and an acknowledgment purporting

to be signed by such person or his agent or other person on his behalf or an endorsement by a postal employee that such person or his agent or such

other person on his behalf has refused to take delivery may be deemed to be prima facie proof of service.

(5) Where the service of the notice is not made in the manner provided under sub-section (4), the contents of the notice shall be advertised in a local

newspaper for the knowledge of the person to whom the notice is addressed and such advertisement shall be deemed to be the service of such notice

on such person.

(6) Where the service of notice under sub-section (2) has been made under sub-section (4) or sub-section

(5) and the unauthorised occupation on the highway land in respect of which such notice is served has not been removed within the time specified in

the notice for such purpose and no reasonable cause has been shown before the Highway Administration or the officer authorised by such

Administration in this behalf for not so removing unauthorised occupation, the Highway Administration or such officer,as the case may be, shall cause

such unauthorised occupation to be removed at the expenses of the Central Government or the State Government, as the case may be, and impose

penalty on the person to whom the notice is addressed which shall be five hundred rupees per square metre of the land so unauthorisedly occupied and

where the penalty so imposed is less than the cost of such land, the penalty may be extended equal to such cost.

(7) Notwithstanding anything contained in this section, the Highway Administration or the officer authorised by such Administration in this behalf shall

have power without issuing any notice under this section to remove the unauthorised occupation on the highway land, if such unauthorised occupation

is in the nature ofâ€

(a) exposing any goods or articleâ€

(i) in open air; or

(ii) through temporary stall, kiosk, booth or any other shop of temporary nature,

(b) construction or erection, whether temporary or permanent, or

(c) trespass or other unauthorised occupation which can be removed easily without use of any machine or other device,

and in removing such occupation, the Highway Administration or such officer may take assistance of the police, if necessary, to remove such

occupation by use of the reasonable force necessary for such removal.

(8) Notwithstanding anything contained in this section, if the Highway Administration or the officer authorised by such Administration in this behalf is

of the opinion that any unauthorised occupation on the highway land is of such a nature that the immediate removal of which is necessary in the

interest ofâ€

(a) the safety of traffic on the Highway; or

(b) the safety of any structure forming part of the Highway,

and no notice can be served on the person responsible for such unauthorised occupation under this section without undue delay owing to his absence

or for any other reason, the Highway Administration or the officer authorised by such Administration may make such construction including alteration

of any construction as may be feasible at the prescribed cost necessary for the safety referred to in clause (a) or clause (b) or have such unauthorised

occupation removed in the manner specified in sub-section (7).

(9) The Highway Administration or an officer authorised by such Administration in this behalf shall, for the purposes of this section or section 27, have

the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following

matters, namely:â€

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents;

(c) issuing commissions for the examination of witnesses; and

(d) any other matter which may be prescribed, and any proceeding before such Administration or officer shall be deemed to be a judicial proceeding

within the meaning of sections 193 and 228, and for the purpose of section 196, of the Indian Penal Code (45 of 1860) and the Administration or the

officer shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).â€​

(12) A perusal of Section 26, bearing in mind the object with which the said law was enacted, leaves us in no manner of doubt, as regards power and

procedure for the removal of any encroachment at a National Highway. The appropriate law is the Act of 2002. In other words, the show cause

notices which have been issued and impugned in these cases are admittedly issued seeking shelter under Section 5 of the Act of 1956. Power under

Section 5 of the Act of 1956 does not extend as is made clear by the circumstances leading to the Act of 2002 and also the express provisions of the

Act of 2002, in particular, Section 26 which provides for the procedure as also the power for causing the removal of encroachment in regard to

National Highways. Section 14 of the Act of 2002 confer a right of appeal to the Tribunal.

(13) The upshot of the above discussion is that the show cause notices which have, in fact, been issued by the officer clutching the power under

Section 28 of the State Act, 2001, and which the learned senior counsel for the State seeks to rest under the provisions of the notification issued under

Section 5 of the Act of 1956, are unauthorised. As correctly observed by the High Court, one of the grounds on which show cause notices can be

interfered with is the lack of jurisdiction of the authority. This is one such case, where the authority to take action and the law under which such action

can be taken are all found located in Act of 2002. To be more specific, the provision of section 26 provides the statutory charter for setting in motion

the proceedings to get rid of encroachment over National Highways.

(14) The respondents do not have a case before us that the authority which has issued the impugned show cause notices in these cases is the authority

contemplated under Section 26. The authority contemplated in Section 26 is the Highway Authority constituted under Section 3 or any officer

authorised by the Highway Authority.

Since no claim is raised based on powers under Section 26, we are constrained to interfere in the matter.

Accordingly, the impugned judgment is set aside. The writ petitions are allowed. The impugned show cause notices will stand set aside. However, we

make it crystal clear that this will be without prejudice to the competent authority under Section 26 to take appropriate action as advised in law.

The appeals are allowed as above.

No orders as to costs.