‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4946 OF 2021
(Arising out of SLP (C)No. 10493 of 2021)
GUNASEKARAN Appellant(s)
VERSUS
THE DIVISIONAL ENGINEER
NATIONAL HIGHWAYS & ORS. Respondent(s)
WITH
CIVIL APPEAL NO. 4947 of 2021
(Arising out of SLP (C)No. 11768 of 2021)
CIVIL APPEAL NO. 4948 of 2021
(Arising out of SLP (C)No. 12587 of 2021)
CIVIL APPEAL NO. 4949/2021
(Arising out of SLP (C)No. 12947 of 2021)
J U D G M E N T
K. M. JOSEPH, J.
Leave granted.
(1) Dr. Joseph Aristotle, learned counsel, appears and
accepts notice on behalf of the respondents in Civil Appeal
1
Civil Appeal No. 4946/2021 etc.
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 and
their 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.”
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
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Civil Appeal No. 4946/2021 etc.
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
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Civil Appeal No. 4946/2021 etc.
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 Additional
Advocate 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:
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, 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
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Civil Appeal No. 4946/2021 etc.
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)
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Civil Appeal No. 4946/2021 etc.
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.
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 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 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 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
6
Civil Appeal No. 4946/2021 etc.
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.”
(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,—
(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:
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 special order made in this behalf by the
Central Government.
7
Civil Appeal No. 4946/2021 etc.
(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:
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 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
8
Civil Appeal No. 4946/2021 etc.
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
9
Civil Appeal No. 4946/2021 etc.
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 of—
(a) exposing any goods or article—
(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 of—
(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 subsection (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
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Civil Appeal No. 4946/2021 etc.
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;
(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).”
(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
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Civil Appeal No. 4946/2021 etc.
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
12
Civil Appeal No. 4946/2021 etc.
authority under Section 26 to take appropriate action as
advised in law.
The appeals are allowed as above.
No orders as to costs.
………………………………………………………………., J.
[ K.M. JOSEPH ]
………………………………………………………………., J.
[ S. RAVINDRA BHAT ]
New Delhi;
August 24, 2021.
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