GUNASEKARAN versus THE DIVISIONAL ENGINEER NATIONAL HIGHWAYS & ORS.

Citation: [2021] 8 S.C.R. 1149 · Decided: 24-08-2021 · Supreme Court of India · Bench: K.M. JOSEPH

Judgment (excerpt)

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GUNASEKARAN
v.
THE DIVISIONAL ENGINEER NATIONAL
HIGHWAYS & ORS.
(Civil Appeal No. 4946 of 2021)
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
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
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
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
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
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,
[2021] 8 S.C.R. 1149
1149
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SUPREME COURT REPORTS
[2021] 8 S.C.R.
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
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. [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
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. [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
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-
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.
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With
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.
V. Krishnamurthy, AAG, Dr.  Joseph Aristotle S., Ms. Preeti

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