Mandates survey, hearing, speaking order for Section 26(2) notices when title claimed prima facie.

(Order of the Court was delivered by G.R.Swaminathan, J.)

Heard both sides.

2.What is impugned in this writ petition is the notice for removal of unauthorized occupation under Sections 26(2) of the Control of National Highways (Land and Traffic) Act, 2002 issued by the authorized officer of NHAI.

3.The impugned notice reads that the noticee can offer his explanation within seven days from the date of receipt of the notice. It is stated by the learned counsel for the writ petitioner that in response to the notice, the petitioner offered his explanation on 02.02.2021. We went through the contents of the said reply. The writ petitioner has taken a specific plea that a large extent of land in Survey No.69/2, Pitchandarkoil village belonged to his family and that a few decades ago, a portion of the same was acquired for laying the petition mentioned National Highway. The petitioner would further claim that boundaries were already marked and that only beyond the said limits and on his patta land, he had put up a fencing. The petitioner denies that he is an encroacher.

4.The learned standing counsel for NHAI submits that on account of grant of interim order in this writ petition, the said objection has not been disposed of till date.

5.Section 26 of the Control of National Highways (Land and Traffic) Act, 2002 reads as follows:-

“26.Removal of unauthorised occupation.

(1)...

(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 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 Ad