Judgement Name : Gunashekaran v.s The Division Engineers National Highway and others on August 24, 2021
Judges Names: K.M.Joseph
Judgement Date: August 24,2021
Introduction:
The national highways that help to speed up transportation and services are the responsibility of the national highway department, but construction and maintenance are the responsibility of the national highway wing,highways department, government of Tamil Nadu. The disagreement in this case is over who has the authority to remove the claimed encroachments and under which rule.
Brief Facts:
In this case, the dispute is on a very small scope. The respondent has served the appellants with a show cause notice, stating that they have encroached on the property that is owned by the National Highways.
The notifications were given in accordance with section 28(2)ii of the Tamil Nadu State Highway Act, 2001. Which was contended that the enactment had been rendered null and void by the passage of the Right to Fair Compensation and Transparency Act and the Land Acquisition, Rehabilitation, and Settlement Act in 2013. The party contended that the state governmental authority lacked jurisdiction over the encroachments.
Contentions by Appellates:
The appellants have filed a writ petition challenging the show cause notice issued by the respondent. It was further contended that the sections under which the show cause notice has been issued stand void with the enactment of the Right to Fair Compensation, Transparency in Land Acquisition.
Contentions by Respondent:
On the other hand the respondent has sent a show cause notice claiming that the appellates have encroached upon the property owned by the National Highways. The contention as articulated by the state in Shri v. Krishnamurthy, where the respondent claims the state authority did have the jurisdiction to send show cause notice, as mentioned by the high court.
Principals laid down:
- The judge on examining Section 5 of National Highways Act,1956 mentions, the section speaks about the responsibility of the central government to develop, construct and maintain the highways and the state government may also have the similar responsibility, relied upon which the notices were issued but there is no mention of the jurisdiction of the show cause notice.
- The bench concluded that bearing in mind all the sections and Section 26, the appropriate law is the act of 2002, in this case the show cause notice issued in Section 5 is admittedly issued to seek shelter, the powers under Section 5 do not extend as it is leading to the National Highways Act, 2002.
Judgement:
- The High Court stated in this case that the road belonged to the National Highway Department, and that maintenance was handled by the government of Tamil Nadu and the National Highway Wing. It went on to claim that after the notifications were given, 326 similar encroachments on the highway were identified. It went on to say that the notices were to show cause notices that were not interfered with unless the issue at hand was jurisdiction.
- The Supreme Court ruled in its final decision that the show cause notices issued by the officer exercising his authority under Section 28 of the State Act of 2001, which were further issued under Section 5 of the Act of 1956, were unlawful. This is a case where the authority to act and the law that governs the same can be found in the act of 2002. The court stated that the steps to take action to remove such encroachments were only referenced under section 26, but because the parties failed to present their claim in the application, the court did not discuss it.
- According to the court, under the 2002 act, the authority has the power to remove encroachments by giving a notice to the suspected encroachers, and the individual is given a reasonable time to respond to the notice. If there is no response to the warning, the person will be approached immediately by the authority, and a penalty of 500 per square kilometre will be computed based on the land encroached upon. Regardless of these laws, the national highway authority will have the authority to take urgent action if such unauthorised action has hampered highway work.
- According to the grounds stated, the impugned judgement is reversed, the writ petitions are granted, and the show cause notices are dismissed. The court has directed the responsible authorities to take appropriate action in accordance with Section 26 criteria.
My Opinion
The power to remove alleged encroachments on the National Highways, which was considered to be under the act of 1956 but the court mentioning and awakening the spirit of the authorities being mentioned under the act of 2002 is the right path as per my opinion.
The procedure to be taken by the authorities in power to remove the encroachments seems like the lengthy procedures of the Civil Procedure Court was also rightly quoted by the bench.
Reported by: Manjusha Siriparapu, Army Institute of Law, Punjab. (2nd Year)
References: