GUNASEKARANversusTHE DIVISIONAL ENGINEER NATIONAL HIGHWAYS & ORS.

                        [2021] 8 S.C.R. 1149                             1149


                         GUNASEKARAN                                     A
                                  v.
           THE DIVISIONAL ENGINEER NATIONAL
                    HIGHWAYS & ORS.
                   (Civil Appeal No. 4946 of 2021)                       B
                         AUGUST 24, 2021
       [K. M. JOSEPH AND S. RAVINDRA BHAT, JJ.]
       Control of National Highways (Land and Traffic) Act, 2002
– s.26 – Tamil Nadu State Highway Act, 2001 – s.28(2)(iii) – National
                                                                         C
Highway Act, 1956 – s.5 – Show cause notices issued to the
appellants alleging that they have encroached upon the property
comprising in the ‘National Highway’ – Appellants filed writ petitions
before the High Court contending that the notices were issued
u/s. 28(2)(iii) of the State Act 2001 and the authorities did not had
jurisdiction under the said Act – High Court did not find any error      D
in the show cause notices and the writ petitions were dismissed –
Before the Supreme Court, the State contended that a notification
was issued u/s. 5 of the 1956 Act and roads where the said
encroachments had taken place were covered by the notification –
It was further contended that the State had issued show cause notices
                                                                         E
under the State Act 2001 and the officer who issued notices had
jurisdiction – Held: A perusal of s.26 of the 2002 Act, bearing in
mind the object with which the said law was enacted, there is no
doubt, as regards power and procedure for the removal of any
encroachment at a National highway – The appropriate Act is the
Act of 2002 – The show cause notices which were issued u/s.28 of         F
the State Act, 2001 issued under the provisions of the notification
issued u/s.5 of the 1956 Act were unauthorised – The authority to
action and the law where such action can be taken are all found
located in 2002 Act – Therefore, the impugned show cause notices
stand set aside – The impugned judgment is set aside and writ
                                                                         G
petitions are allowed.
      Allowing the appeals, the Court
      HELD: 1. A perusal of Section 26 of the Control of National
Highways (Land and Traffic) Act, 2002, bearing in mind the object
with which the said law was enacted, it leaves no manner of doubt,       H
                              1149
1150             SUPREME COURT REPORTS                     [2021] 8 S.C.R.


 A     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 National Highway Act,
       1956. Power under Section 5 of the Act of 1956 does not extend
 B
       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
 C     to the Tribunal. [Para 12][1159-C-E]
             2. The upshot of the 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
       State seeks to rest under the provisions of the notification issued
 D     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
 E     of section 26 provides the statutory charter for setting in motion
       the proceedings to get rid of encroachment over National
       Highways. [Para 13][1159-E-G]
             3. The respondents do not have a case that the authority
       which has issued the impugned show cause notices in these cases
 F     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, this
       Court is constrained to interfere in the matter. [Para 14][1159-
 G     H; 1160-A-B]
               CIVIL APPELLATE JURISDICTION: Civil Appeal No.4946 of
       2021.
             From the Judgment and Order dated 29.04.2021 of the High Court
       of Judicature at Madras, Madurai Bench in WP MD No.19322 of 2020.
 H
GUNASEKARAN v. THE DIVISIONAL ENGINEER NATIONAL 1151
                HIGHWAYS & ORS.

      With                                                                     A
      Civil Appeal No. 4947, 4948 and 4949 of 2021.
      B. Karunakaran, M. Saravanan, Jagdeesha Pandian, Anirudh J,
G. Sanjay, Anoop Prakash Awasthi, S. Gowthaman, Advs. for the
Appellant.
                                                                               B
     V. Krishnamurthy, AAG, Dr. Joseph Aristotle S., Ms. Preeti Singh,
Ms. Ripul Swati Kumari, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      K. M. JOSEPH, J.
                                                                               C
      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).
                                                                               D
      (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 and their writ petitions were accordingly, dismissed.
                                                                               E
      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 2 nd           F
      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.”
       The dispute lies essentially in a narrow compass. The allegation        G
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        H
1152            SUPREME COURT REPORTS                           [2021] 8 S.C.R.


 A     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.
 B
              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
 C     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
 D     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
 E     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
 F     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 Additional Advocate General for the State
       of Tamil Nadu, is that notification has been issued under Section 5 of the
 G     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.
 H
GUNASEKARAN v. THE DIVISIONAL ENGINEER NATIONAL 1153
        HIGHWAYS & ORS.[K. M. JOSEPH, J.]

      (6) If we notice the statutory framework of the Act of 1956, this        A
Act provides in Section 5 as follows:
        5. Responsibility for development and maintenance of national
        highways.—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,   B
        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.      C

        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         D
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         E
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       F
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:                                                        G
        “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           H
1154            SUPREME COURT REPORTS                           [2021] 8 S.C.R.


 A           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
 B
             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
 C           through the Highway Administration.
               2. 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
 D     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.
              3. The absence of legislation empowering the competent authority
       to remove encroachments on the National Highways has resulted in
 E     shops, hotels, tea stalls, repair shops, petrol pumps, weigh bridge,
       residences and commercial establishments extending their activities right
       on the National Highways land.
               4. Highway authorities do not have either power to regulate traffic
       coming on the National Highways or to control the number of access
 F     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
 G     legal authority to prevent such nuisances.”
            (8) Section 3 provides for the establishment of Highways
       Administration. It reads as follows:
             3. Establishment of Highway Administrations.—(1) The Central
             Government shall, by notification in the Official Gazette,—
 H
GUNASEKARAN v. THE DIVISIONAL ENGINEER NATIONAL 1155
        HIGHWAYS & ORS.[K. M. JOSEPH, J.]

         (a) establish, for the purposes of this Act, a body or authority    A
         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    B
         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          C
      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).                                                 D
      (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:                                                              E
      4. Powers and functions of Highway Administration.—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        F
      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 aliaprovides for prevention of occupation of any      G
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.
                                                                             H
1156           SUPREME COURT REPORTS                           [2021] 8 S.C.R.


 A          (11) Section 26 dealing with the removal of unauthorised
       occupation, reads as follows:
            26. Removal of unauthorised occupation.—(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
 B          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
 C          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
 D          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
 E          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.
 F
            (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
 G          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).
 H
GUNASEKARAN v. THE DIVISIONAL ENGINEER NATIONAL 1157
        HIGHWAYS & ORS.[K. M. JOSEPH, J.]

    (4) The service of the notice under sub-section (2) shall be made     A
    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
                                                                          B
    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       C
    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     D
    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    E
    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        F
    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          G
    land, if such unauthorised occupation is in the nature of—
       (a) exposing any goods or article—
          (i) in open air; or
                                                                          H
1158      SUPREME COURT REPORTS                           [2021] 8 S.C.R.


 A           (ii) through temporary stall, kiosk,
                  booth or any other shop of temporary
                  nature,
          (b) construction or erection, whether
             temporary or permanent, or
 B
          (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
 C
       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
 D
       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 of—
          (a) the safety of traffic on the Highway; or
 E        (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
 F     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
 G     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:—
          (a) summoning and enforcing the attendance of any person
          and examining him on oath;
 H
GUNASEKARAN v. THE DIVISIONAL ENGINEER NATIONAL 1159
        HIGHWAYS & ORS.[K. M. JOSEPH, J.]

          (b) requiring the discovery and production of documents;           A
          (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      B
      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).”
                                                                             C
       (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.    D
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        E
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       F
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    G
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       H
1160                SUPREME COURT REPORTS                      [2021] 8 S.C.R.


 A     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
 B     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.
 C
             No orders as to costs.


       Ankit Gyan                                                 Appeals allowed.


 D




 E




 F




 G




 H