IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.03.2011 CORAM: THE HON'BLE MR.JUSTICE K.CHANDRU W.P.NO.23860 OF 2010 and M.P.No.1 of 2010 Aadvin Hotel (P) Ltd. Rep. by its Director, Mr.Sanjay Kumar Gupta ... Petitioner Vs. 1.The Secretary, Government of Tamil Nadu, Highways and Minor Ports Department, Fort St. George, Chennai-9. Cause title amended as per the order of this court dated 23.12.2010 in M.P.No.2 of 2010 2.The Assistant Divisional Engineer, Highways Department, Kodumudi, Erode District. ... Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus, to call for the records in the impugned notice dated 8.10.2010, on the file of the second respondent and quash the same as arbitrary, illegal and against the principles of natural justice and direct the second respondent to first measure the premises No.24-A, By pass Road, Kodumudi 638 151 in the presence of the petitioner after giving due opportunity and notice to the petitioner and thereafter pass appropriate orders in the matter. For Petitioner : Mr.A.Thiagarajan, SC for Mr.S.Ramesh Kumar For Respondents : Mrs.C.Devi, GA O R D E R The petitioner has constructed a hotel at Door No.24-A, Bye-pass Road, Kodumudi, Erode District. The petitioner on an earlier occasion, filed W.P.No.13119 of 2008 seeking to set aside the notice issued by the second respondent, Assistant Divisional Engineer, Highways Department, Kodumudi, Erode District dated 13.5.2008. This court found that the said order passed by the second respondent does not indicate that enquiry was https://hcservices.ecourts.gov.in/hcservices/ conducted before issuing notice. On the ground of not conducting due enquiry, the notice was quashed. 2.Subsequent to the order passed by this court, the petitioner sent a representation dated 28.5.2010 stating that it has constructed the hotel in accordance with the approved planning permission and there was no deviation. But, the show cause notice referred that there was an encroachment of 6 inches of the compound wall. The petitioner has further stated in the said explanation that there can be error in the measurement and if at all any encroachment which is very negligible, the same can be ignored. There was also encroachment to an extent of 10 feet which are ignored by the Highways authority. But the petitioner's encroachment is only 6 inches of thickness of wall, that too, an error of measurement and hence, requested the Highways authority to drop the further proceedings. 3.While so, the Assistant Divisional Engineer, Highways Department, Kodumudi, Erode District, the second respondent issued the impugned notice dated 8.10.2010 under Section 28(2)(II) of Tamil Nadu Highways Act, 2001 to the petitioner to remove the encroachment, failing which, appropriate action will be taken to remove the encroachment and the petitioner will bear with the cost of removal of such encroachment. In the mean time, the petitioner has also made an application for measurement. 4.However, this Court is not inclined to entertain this writ petition on the following grounds. In fact, on perusal of Section 28(2) of the Tamil Nadu Highways Act, it clearly shows that any encroachment made in the Highways land, can be removed even without issuing notice. It is relevant to extract Section 28(2), which reads as follows: "28(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." 5.In the present case, at the first round of litigation, this court directed the second respondent to pass orders afresh, after considering https://hcservices.ecourts.gov.in/hcservices/ the explanation submitted by the petitioner. But the petitioner in its explanation, shifted its stand. In the reply to the notice, it is not open to the petitioner to state that there are also other encroachments, which are not attended to by the Highways authority. The contention that the encroachment if at all any, which is very negligible, can be ignored, cannot be entertained. The petitioner being a hotel, should strictly go by the rules prescribed for such construction. It is well open to the Highways authority to remove any encroachment upon the highways lands. Hence, it is unnecessary for this court to direct the respondents to take any measurement. If the petitioner being the owner of the land, is entitled to file suit for establishing its title. The writ court is not an appropriate forum to establish the propriety of the petitioner's right. Under the such circumstances, no case has been made out by the petitioner. Hence, the writ petition stands dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rk To 1.The Secretary, Government of Tamil Nadu, Highways and Minor Ports Department, Fort St. George, Chennai-9. 2.The Assistant Divisional Engineer, Highways Department, Kodumudi, Erode District. +1cc to Mr.S.Ramesh Kumar, Advocate Sr 23185 +1cc to Govt. Pleader Sr 23403 LA(CO) km/19.4. W.P.NO.23860 OF 2010 https://hcservices.ecourts.gov.in/hcservices/