The petitioners have come before this court challenging the orders dated 2.7.2009 issued by the 5th respondent namely the Assistant Divisional Engineer, High Ways, High Ways Department Tambaram/Saidapet, Chennai calling upon the petitioners to vacate the portions of the property under their occupation belonging to the High Ways Department. The said notices were issued under Section 28(2) (ii) of the Tamil Nadu High Ways Act,2001.
2. The petitioners contend that they have been living/carrying on business for the past so many years and in fact they produced documents for having paid taxes to the Municipality, family ration card, electricity consumption card to show their possession.
3. Learned counsel for the petitioners submitted that earlier notice dated 22.11.2008 was issued to all the petitioners and subsequent reply by way of representations were given to the fifth respondent. Subsequent to the representations given by the petitioners by way of reply, the impugned notices were issued. Learned counsel for the petitioners further contended that before issuance of notice under Section 28(2)(ii) of the Tamil Nadu High Ways Act,2001 the first respondent has to enquire into the matter in detail with regard to the possession of the property held by the petitioners and he should have explained for what purpose the petitioners are sought to be evicted.
4. It is relevant to extract Section 28 of the Tamil Nadu High Ways Act, 2001, which 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 with 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.
Section 28 empowers the Highways Authority to remove from highways land any unauthorised encroachment."
5. As per Section 28(2) of the Tamil Nadu High Ways Act, 2001 any person authorised by the High Ways authority it may remove the superstructure whether permanent or temporary encroaching the High Ways or any area vested with the Government under the Act after issuing show cause notice against such removal returnable within a period of seven days. Therefore power is vested with the authority to remove the encroachments. Though earlier notice was issued on 22.11.2008, again a fresh notice has been issued on 2.7.2009, which is under challenge before this court. The impugned notice is only a show cause notice and for which reply should have been given by the petitioners giving details of their grievance. It is well settled position of law that no writ petition is maintainable against show cause notice. Since the petitioners are poor and stated to be in possession for a long time, this court grants three weeks time to give their representations/replies to the impugned show cause notice. The fourth and fifth respondents are directed to pass orders within six weeks thereafter and if necessary personal hearing may also be given to the parties. Till enquiry is conducted and final orders are passed, the petitioners' possession should not be disturbed in any manner.
6. With the above directions, these writ petitions are disposed. However there will be no order as to costs. Consequently the connected M.P.Nos.1,2,1,2,1,2,1,2,1,2,1,2,1,2,1,2,1,2,1,2,1,2,and 1,2 of 2009 are closed.
vk To:
1.The District Collector, Kancheepuram, Kancheepuram District.
2.The Tahsildr, Tambaram Taluk, Tambaram West, Chennai-45.
3.The Municipal Commissioner, Tambaram Municipality, Tambaram, Chennai.
4.The Divisional Engineer, Highways Department, Thiruvallur.
5.The Assistant Divisional Engineer(Highways) Highways Department, (Tambaram) Saidapet, Chennai-15.
5.The Assistant Divisional Engineer(Highways) Highways Department, Tambaram