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, 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][1159H; 1160-A-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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