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ASSAM HIGHWAYS ACT, 1989
ASSAM HIGHWAYS ACT, 1989
[ Act No. 18 of 1995]
[ 22nd August, 1995]
PREAMBLE
An Act to provide for the regulation of road development and Road transport in State of Assam
Whereas it is expedient to provide generally for the regulation of road development and road transport so as secure for the public such conditions as will ensure the maximum efficiency of all means of road along roads, in the State of Assam.
It is hereby enacted in the Fortieth year of the Republic of India as follows, namely :
Section 1 - Short title, extent and commencement
(1) This Act may be called the Assam Highways Act, 1989.
(2) It shall extend to the whole of the State of Assam.
(3) It shall come into force on such date as the State Government may, by notification in the official Gazette, appoint.
Section 2 - Definitions
In this Act, unless there is anything repugnant in the subject or context -
(1) "animal" means any elephant, camel, horse, ass, mule, cattle, sheep or goat;
(2) "betterment" when applied to land means the increase in the value of any land arising from the execution in its vicinity of a highway development scheme at public expense;
(3) "betterment tax" means a tax on owners of land on the basis of percentage of the betterment value of the land;
(4) "building line" means a lien on either side of any highway or part of a highway, as determined by the highway authority under S. 12 of this Act;
(5) "competent authority" means the State Government or a local authority or any officer of the State Government or local authority competent to sanction the construction of or repair to, a highway;
(6) "control line" means a line on either side of a highway or part of a highway beyond the building line, as determined by the highway authority under S. 12 of this Act;
(7) "driver" means in the case of vehicle the person in charge or control of the vehicle for the time being, and in the case of an animal, any person driving, loading, riding or otherwise managing or controlling the animal and the words drive, driving, driven, shall be construct accordingly.
(8) "encroachment" means occupation of any highway or part thereof, an includes -
(a) the erection of a building or any other structure, balconies, porchies, chajjas or projections on, over or overhanging the highway land;
(b) occupation of highway land beyond the prescribed period, if any, for stacking building materials or goods of any other description fro exhibiting articles for sale, for erecting poles, awning, tents, pendals and other similar erection or for parking vehicles or stabling domestic animals or for any other purposes, and
(c) excavations or embankment of any sort made or extended on any highway land;
(9) "highway" means any pubic throughfare, whether a road, street, lane, bridlepath or a foot-trade, whether surfaced or unsurfaced, whether on land owned by the Sate Government or a local authority or on land belonging to a private person over which the public have or have acquired a right of way by usage, and includes -
(a) the slope, barn, borrow-pits, foot-paths, pavements and side drains of any such thoroughfare;
(b) all bridges, culverts, causeways, carriageways or other road structures, built on or across such thoroughfares;
(c) the trees, fences, posts and other highway accessories and materials and material stacks on the thoroughfare or on land attached to the thoroughfare but does not include the national highway as denned under the National Highway Act, 1956;
(10) "highway authority" means -
(a) for highways maintained by the State Government, the Department of the State Government responsible for their maintenance or any other authority specially appointed by the State Government in this behalf;
(b) for highway maintained by a local authority or such other authority as may be appointed by the State Government in this behalf; and
(c) for highways not included in Cls. (a) and (b), the authority appointed as the "highway authority" under S. 3 or, if no such appointment has been made, the State Government itself;
(11) "highway boundaries" means the boundaries of the highway whether visibly demarcated or not, within which contained the areas of land constituting the highway or land reserved or acquired fro widening the highway;
(12) "Limited across highway" means a highway access to which is permitted only at points specifically provided or agreed to for the purpose by the highway authority;
(13) "middle of a highway" means in relation to any highway for the improvement of which plans have been prepared by the highway authority, the middle of the highway as proposed to be improved in accordance with the plains and where no such plans have been prepared, the point half-way between the boundaries of the highway;
(14) "motor" vehicle" means a motor vehicle as defined in the Motor Vehicles Act, 1939;
(15) "permit" mean the documents issued by authority competent to issue it authorizing the use of a vehicle;
(16) "prescribed" means prescribed in this Act, or by rules made under this Act.
(17) "public place" means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a public vehicle;
(18) "public vehicle" mean any vehicle used or constructed or adopted to be used for the carriage of passengers or goods for hire or reward;
(19) "standard width of highway" means the width of a highway between its boundaries as prescribed by the highway authority under S. 11;
(20) "survey" includes all operation incidental to the determination, measurement and record of a boundary or boundaries or any part of a boundary and includes a re-survey;
(21) "survey mark" means any mark or object erected, made, employed or specified by a survey officer to indicate or determine or assist in determining the position or level or any point or points;
(22) "survey officer" means any person appointed to be survey officer under this Act;
(23) "vehicle" includes the wheeled conveyance drawn. Propelled or driven by any kind of power including human, animal, motor, steam or electric power, and includes any borrow, sledge, plough, drag or like vehicle.
Section 3 - Appointment of highway authority
(1) The State Government may, by notification in the official Gazette, appoint any person, either by name or by virtue of his office, to be the highway authority for all highways in such part of the State or for such particular highway or highways in the State and subject to such conditions and limitations as may be specified in the notification.
(2) A highway authority so appointed shall exercise and discharge throughout its jurisdiction powers and functions specified in the succeeding Chapter subject to such limitations as may have been imposed by the notification issued under sub-S. (1).
Section 4 - Transfer of control form one highway authority to another
(1) The State Government may at any time, by notification in the official Gazette, transfer control of any highway form itself or any of its departments functioning as the highway authority to another highway authority, or from one highway authority to another, in regard to such maters dealt with by this Act and on such conditions as may be specified in the notification.
(2) When a highway authority has been changed in the manner prescribed under sub-S. (1), the new highway authority shall, as from the date of the notification issued under that sub-section, exercise in respect of the highway or highways of which control has been transferred, all the powers and functions of the previous highway subject to the conditions, if any, specified in that notification.
Section 5 - Power to enter land for reconnaissance and preliminary survey in connection with highway scheme
(1) The highway authority, or any officer not below the rank of a supervisor of P.W.D. or Local Board authorised by the highway authority in this behalf undertake a reconnaissance survey in connection with the preparation of a highway scheme and may for this purpose -
(a) enter upon any land alongwith his workmen and survey and taken measurements and levels on it;
(b) mark such levels, ding or bore into the sub-soil and do all other acts necessary to ascertain whether the land is suitable;
(c) set out the boundaries of the proposed highway by placing and cutting trenches; and
(d) where otherwise survey cannot be completed and the levels taken and the boundaries marked, cut down and clear nay part of a standing crop, fence or jungle;
Provided that no person shall enter into any building or any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof previously giving such occupier at least 48 hours' notice in writing of his intention to do so.
(2) The highway authority of the authorized official shall, at the time of such entry, pay or tender payment for all necessary damages to be done as aforesaid, and in case of dispute as to the sufficiency of the amount so paid or tendered, shall at once refer the dispute to the decision of the Collector or other Chief Revenue Officer of the district, and such decision shall be final.
Section 6 - Preparation of schemes for highway development
(1) The highway authority may, of its own accord or if expressly requested by the competent authority shall, subject to the other provisions of this Act and subject to such rules as may be framed by the State Government for this purpose, prepare and submit to the competent authority for sanction, a detailed scheme for the construction of a new highway or the improvement of or repairs to an existing one.
(2) Such a scheme may provide for -
(a) the acquisition of any land which, in the opinion of the highway authority, is considered necessary for its execution;
(b) the laying out or relaying out of all or any of the lands so acquired;
(c) the diversion of closure of any existing highway or a section of such highway;
(d) the construction of reconstruction of the roadway including its widening, levelling, surfacing, bridging, sewering, draining, water supply and street lighting arrangement and planting of roadside trees;
(e) the laying out of foot-paths, cycle tracks and special traffic lanes for any kind or class of vehicles, the designing and setting of parking bays and petrol filling and service stations, location of advertisement post and bill boards; and
(f) the lay-out of access roads at suitable distances connecting the highway or the proposed highway with the adjoining properties.
Section 7 - Power to do certain acts for execution of highway schemes
When the competent authority has sanctioned the highway schemes prepared in pursuance of S. 6 and provided the necessary finances for its execution, the highway authority shall proceed to carry out the work and may, for this purpose -
(a) enter into a perform all such contracts on behalf of the competent authority as may be considered necessary;
(b) make arrangements for the acquisition of the lands required under the scheme by outright gift or purchase by agreement with the owner or owners, or failing such agreement, by resort to the provisions of the Land Acquisition Act, 1894, as amended from time to time;
(c) turn, divert or close either temporarily or permanently may existing highway or portion thereof; and
(d) regulate, subject to such rules as may be prescribed in this behalf, the kind, number and speed of vehicle using any highway or portion thereof by means of barrier, diversion roads or other means.
Section 8 - Maintenance of highway plans
(1) A highway authority shall maintain authoritative plans for the highways in its charge.
(2) Such plans shall show clearly the boundaries of the highway, the detailed measurements of roads widths, the distances between boundary marks and sufficient measurements from fixed points to enable the relaxation in position of boundary marks in case they have been displaced or tampered with.
(3) The highway authority shall have all such authoritative plans prepared after having a survey made of the highway land and their boundaries in the manner prescribed in Chapter X and in accordance with the record of that survey as notified under S. 51 and modified, as may be under S. 52.
Section 9 - Demarcation of road boundaries
(1) The highway authority shall have the boundaries of the highways in its charge demarcated with reference to the authoritative plans maintained by it, by planting stones or other suitable marks of a durable nature at intervals all along the highway in such a manner that he imaginary line joining such stones or mark shows the road boundary correctly.
(2) Where there are bends or links in the road boundary, the stone or marks shall be located as to give the correct configuration of the boundary if they are joined by straight lines.
(3) The boundary stones or marks, which may be given consecutive numbers, shall be maintained on the grounds as if they constitute part of the highway.
(4) Whether standard widths have been prescribed for any highway under S. 11, the distance between the highway boundaries so demarcated shall correspond to that width.
Section 10 - Annual check road boundaries
(1) It shall be the duty of the highway authority to conduct an annual check of the boundaries of the highway in its charge with a view to locating unauthorised encroachments if any.
(2) When the highway authority is satisfied that an unauthorised encroachment has been made on highway land, it shall take immediate steps as prescribed in S. 21 for the removal thereof.
Section 11 - Standard widths of highways
(1) The highway authority may, with the previous approval of the State Government, prescribe a standard width for any highway in its charge.
(2) The standard width may be different in different portions of the same highway according to local needs.
(3) When a highway authority proposes to prescribe a standard width in respect of an highway or a portion thereof, it shall notify the proposal in the official Gazette and invite the objections, if any, to be submitted to in within 60 days of the date of publication of the notification.
(4) The notification shall also be published in at least two newspapers, one of which shall be in the local language circulating in the locality where the highway is situated, and in addition, copies of the notification shall be prominently displayed in a number of places in the locality.
(5) All objections received with in the prescribed period shall be taken into account by the highway authority before finalizing its proposal for submission to the State Government.
(6) The State Government may reject or sanction the proposal with or without modification, and shall publish their orders in the official Gazette.
(7) When the State Government's orders sanctioning the proposal with or without modification has been issued the highway authority shall cause further publicity to be given to the standard width as finally approved, in the same manner as prescribed in sub-S. (4), and the records so published shall thereupon be conclusive proof that the standard width so determined and recorded therein has been correctly determined and recorded.
(8) In determining the standard width, the highway authority and State Government shall take into account the requirements of public health and welfare, safety and convenience for all classes of traffic, including pedestrians and cyclists likely to use the highway.
(9) The standard width so determined may at any time to be altered but the procedure for such alteration shall be the same as prescribed for the determination of the original standard width.
(10) The highway authority shall, as early as economically practicable after the prescription of the standard width, acquire either by direct negotiation or, failing such negotiation, by compulsory acquisition under the Land Acquisition Act, 1894 as amended from time to time all land lying within the standard width not already forming part of the highway land.
Section 12 - Prescription of building and control lines
(1) The highway authority may, with the previous approval of the State Government, determine a building line and a control line in respect of any highway in its charge along with one or both sides of the highway.
(2) The distance between the middle of a highway and the building line or that between the building line and the control line, which shall be fixed with due regard to the requirements of safety and convenience for traffic and of public health and welfare, may very in different portions of the highway according to local conditions.
(3) When a highway authority proposed to determine a building and a control line in respect of a highway, the same procedure shall, as far as applicable, be followed as prescribed under sub-Ss. (3) to (7) of S. 11 for the prescription of standard width.
(4) The building and control lines as finally determined shall be demarcated on the ground by distinctive stones or other suitable marks which may be painted with different colours and serially numbered.
Section 13 - Restriction of building etc. in the areas between the highway and the building line
(1) Notwithstanding anything contained in any other law for the time being in force, it shall be unlawful for any person, except the highway authority or any person working on behalf of the highway authority -
(a) to construct or lay out any means of access to or from a highway;
(b) to erect or re-erect any building or materially after the outside appearance of any existing building;
(c) to make any excavation; or
(d) to construct, form or lay out any works, upon land lying nearer to the middle of a highway than a distance equal to one-half of its standard width prescribed under S. 11, or upon land laying between the boundary of a highway and the building line determined in respect of the highway under S. 12; provided, however, that these restrictions shall not apply to any works necessary for the repair, renewal, enlargement or maintenance of any sewer, drain, electric line pipe, duct or other apparatus, constructed in or upon the land before the date on which the restrictions came into force or, with the consent of the highway authority, on or after that date.
(2) Should any building (including a wall) or any part thereof lie within the area between the building line and the middle of a highway, the highway authority may, whenever such building or part has been either entirely or in greater part taken down or burnt down or has fallen down, by notice require such building or part when rebuilt to be set back to the building line.
Section 14 - Registration on buildings etc., between the building and the control lines
(1) Notwithstanding anything contained in any law for the time being in force, no person shall erect any building or structure or make or extend any excavation or construct, form or lay out any means of access to a highway upon land laying in between the building and control lines determined in respect of the highway, except with the previous permission of the highway authority in writing.
(2) Every person desiring to obtain the permission referred to in sub-S. (1) shall make an application in writing to the highway authority in such form and containing such information in respect of the building, excavation or means of access to which the application relates, and together with such fees as may be prescribed.
(3) On receipt of such application, the highway authority after making such enquiries as it may consider necessary, shall by order in writing either -
(a) grant the permission, subject to such reasonable conditions, if any, as may be specified in the order, or
(b) refuse to grant such permission.
(4) The highway authority shall not ordinarily refuse permission to -
(a) the erection of a building or structure or the making of or extending an excavation which conforms to the requirements of public health and welfare and of safety and convenience of traffic on the adjoining highway; or
(b) the re-erection of a building or structure;
which was in existence on the date on which the restrictions under sub-S. (1) came into force, unless such re-erection involved any material alteration to the outside appearance of the building or structure.
(5) When the highway authority refuses the permission, the reason therefore shall be recorded and communicated to the applicant.
(6) In the event of refusal, the applicant may submit fresh application for permission to the highway authority avoiding the objectionable features on account of which the first application was refused and such a fresh application shall be considered by the highway authority as if it were made for the first time.
(7) If at the expiration of a period of three months after an application has under sub-S. (1) or sub-S. (6) been made to the highway authority, no order in writing has been passed by that authority, permission shall be deemed to have been given without the imposition of any conditions :
Provided that no such automatic grant of permission shall be presumed if the application is one fro the construction, formation or laying out of any means of access.
(8) The highway authority shall maintain a register with sufficient particulars of all permission given or refused by it under this section and the register shall be available for inspection free of charge by all persons interested and such person be entitled to take extract therefrom.
(9) Any person aggrieved by an order sub-S. (2), granting permission subject to conditions or refusing permission, may within 30 days from the date of such order, prefer an appeal to the State Government whose order in the matter shall be final.
Section 15 - Declaration of limited access to highways
(1) The highway authority may, with the written approval of the State Government, declare a highway or any portion of it to be a limited access highway.
(2) When a highway authority proposed to make any declaration under sub-S. (1), the same procedure shall, as applicable, be followed as prescribed under sub-Ss. (3) to (7) of S. 11 for the prescription of standard widths.
(3) It shall be unlawful for any person to layout a new means of access to a limited access highway for vehicles or pedestrians, except with the specific permission of the highway authority.
(4) The procedure for obtaining the permission of the highway authority for this purpose shall be the same as prescribed in S. 14, and in the event of refusal of permission the applicant shall have the right of making a fresh application to the authority and the right of appeal to the State Government in the same manner as provided for in that section.
(5) When any highway or part of it has been declared to be a limited access highway, the highway authority shall within six months of the final publication of the declaration or such longer time as may be specially allotted by the State Government in any individual case, prepare a plan of such highway or part showing the points on which access shall, if applied for in accordance with sub-S. (4) be permitted.
(6) A plan so prepared shall b available for inspection by the public in the office of the highway authority free of charge at all reasonable times, and copies of it shall be made available to any member of the public on application to the highway authority and on payment of such reasonable cost as may be prescribed.
Section 16 - Regulation or diversion of existing rights of access
(1) The highway authority may, if it is considered essential in the interests of safety or convenience of traffic, regulate or divert any existing right of access to a highway across land between the control line and the highway boundary.
(2) Where an existing right of access is diverted, the point at which alternative access is given to the highway shall not be unreasonably distant from the existing point of access.
(3) In the case of existing village tracks and lanes giving access to a highway at right angles, the alternative access that may be provided shall as far as possible have a diagonal approach to the highway.
Section 17 - Compensation
(1) Notwithstanding anything contained in any other law for the time being in force, no person shall be entitled to claim any compensation for any injury, damage or loss caused or alleged to have been caused as a result of-
(a) the restriction imposed against the erection or re-erection of a building or the making or extending of any excavation of the laying out of any means of access on or across land laying in between the control line and the middle of highway under sub-S. (1) of S. 13 or sub-S. (1) of S. 14.
(b) the regulation or diversion under S. 16 of the existing rights of access across lands lying within the control line and the highway boundary; and
(c) the refusal of permission to the laying out of new means of access to a limited access highway under sub-S. (3) of S. 15 :
Provided that compensation shall be payable by the highway authority :
(i) where in compliance with the notice served by the highway authority under sub-S. (2) of S. 13 a building or part thereof has been set back to the building line of any highway; and
(ii) where permission to erect or re-erect a building in the area lying in between the central line and building line of a highway has been finally refused under S. 14.
(2) Where compensation is payable under the proviso to sub-S. (1), the claimant may, within three months of the date of notice issued by the highway authority under sub-S (2) of S. 13 or within three months of the date of final refusal or permission under S. 14 as the case may be, prefers his claims for compensation direct to the office to the officer exercising the powers of the Collector under the Land Acquisition Act, 1894 as amended from time to time.
(3) Nothing in this section shall be deemed to preclude the settlement of a claim by mutual agreement.
Section 18 - Amount of compensation how determined
(1) When a claim is transferred for disposal under sub-S. (3) of S. 17 to an officer exercising the powers of a Collector under the Land Acquisition Act, 1894 as amended from time to time, such officer shall make an award determining the amount of compensation payable to the claimant.
(2) The amount of compensation warded under sub-S. (1) shall, in no case exceed the difference between the market value of the land when permission had been granted. Sale deed of five consecutive years preceding the date of publication are taken into consideration in a comparative statement. Average value of the comparative statement is considered to be market value of the land in the vicinity where compensation of land is to be determined.
(3) No compensation shall be awarded under sub-s. (1) -
(i) unless the claimant satisfies the officer making the award that proposals for the development of the land, which at the date of application under sub-S. (2) of S. 14 were immediately practicable, or would have been practicable on that date if this Act had not been passed, were prevented or injuriously affected by the restrictions imposed under this Act and that there was demand for such development, or
(ii) if and in so far as the land is subject to substantially similar restrictions in force under some other enactment which were so in force at the date when the restrictions were imposed under this Act, or
(iii) if compensation in respect of the same restrictions in force under this Act or of substantially similar restrictions in force under any other enactment has already been paid in respect of the land to the claimant or to any predecessor in interest of the claimant.
(4) The provisions of Chapter III, IV, V and VII of the Land Acquisition Act, 1894, shall, so far as may be, apply to an award made under sub-S. (1) as though it were an award made under that Act.
Section 19 - Highway lands to be deemed State Government property
All lands forming part of a highway which do not already vest in the State Government shall, for he purposes of this Chapter, be deemed to be State Government property.
Section 20 - Prevention of unauthorized occupation of highway land
(1) No person shall occupy or encroach on highway land without obtaining the previous permission in writing of the highway authority or any officer authorized by the highway authority in this behalf.
(2) The highway authority or the authorized officer may, with due regard to the safety and convenience of traffic and subject to such conditions as may be imposed and rules as may be prescribed by the State Government and on payment of such rent or other charges as may be prescribed under such rules, permit any person -
(i) to place movable encroachment on any highway in front of any building owned by him or make a moveable structure overhanging the highway,
(ii) to put up a temporary awning or tent, pandal or other similar erections or a temporary stall or scaffolding on any highway, or
(iii) to deposit or cause to be deposited building materials, goods for sale or other articles on any highway, or
(iv) to make a temporary excavation, for carrying out any repairs or improvements to adjoining buildings :
Provided that no such permission shall be deemed to be valid beyond a period of one year unless expressly renewed by the highway authority or the authorized officer.
(3) The permission so granted shall clearly specific the date up to which the person is authorized to occupy the highway land, and purposes for which occupation is authorised and the exact portion of the highway permitted to be occupation is authorized and the exact portion of the highway permitted to be occupied, and shall also be accompanied by a plan or sketch of that portion of the highway, if necessary.
(4) The person in whose favour, such a permission has been given shall produce the permit for inspection whenever called upon to do so by any highway official and shall at the end of the period prescribed in the permit release the land occupied by him after resorting it to the same state as be occupation by him.
(5) The highway authority o the officer issuing the permission shall maintain a complete record of all such permissions issued, and shall also cause a check-up to be made in every case at the expiration of the period up to which occupation has been authorised to ensure that the land has actually been vacated.
Section 21 - Removal of encroachment
(1) When, as a result of the annual check of highway boundaries made S. 10 or otherwise, it transpires that an encroachment has taken place on highway land, the highway authority or any officer authorized in this behalf shall serve a notice on the person responsible for the encroachment or his representative requiring him to remove such encroachment and restore the land to its original condition before encroachment within the period specified in the notice.
(2) The notice shall specify the land encroached upon and the time limit within which such encroachment shall be removed and shall also state the failure to comply within the prescribed period shall render the person liable to prosecution and also to summary eviction.
(3) If the encroachment is not removed by the person or ashis representative within the time limit prescribed in the notice and no valid cause is shown by him for noncompliance, the highway authority or the authorized official may prosecute him before the appropriate magistrate for his having made or caused the encroachment and for his failure to remove it within the prescribed time.
(4) Where the encroachment is petty or of trivial nature. e.g., exposing articles for sale, opening temporary booths for vendidg, etc., the highway authority or the authorized official may with the help of the police if necessary have it summarily removed without the formality of issuing a notice required under sub-S. (1), or in lieu of removal of the encroachment shall have the opening of executing a lease in favour of the highway authority for payment of rent for the area encroached upon.
(5) When the encroachment is of a temporary nature and can easily be removed but is to such as can be described as petty or trivial within the meaning indicated in sub-S. (4), the highway authority or the authorized official may in addition to or in lieu of prosecuting the person responsible for the encroachment under sub-S. (3) have the encroachment summarily removed with the assistance of the police, if necessary.
(6) Where the encroachment is of such a nature that its immediate removal is considered essential in the interest of safety of traffic on the highway or the safety of traffic on the highway or the safety of any structure forming part of the highway and no notice can be served immediately on the person responsible for the encroachment or his representative under sub-S. (1) owing to his absence or for any other reason, the highway authority or the authorized official may in addition to prosecution of the person under sub-S. (3) either -
(i) have such protective work as may be feasible at a reasonable cost carried out so as to minimize the danger to traffic on the highway, or
(ii) have the encroachment removed with the held of the police, if necessary.
(7) Where the encroachment is of a permanent nature and has been in existence for some time but not enough to create a prescriptive right by advise possession and the person responsible for the encroachment or his representative has not arranged for its removal even after he has been prosecuted under sub-S. (3) and convicted and fresh notice for its removal shall be served on him by he highway authority or the officer authorized under sub-S. (1), and in the event of his failure to comply with that notice also the highway authority or the authorized official shall institute a second prosecution against him and simultaneously apply to the magistrate having local jurisdiction to order the removal of the encroachment and the magistrate shall thereupon have the encroachment removed.
Section 22 - Injunction on eh highway authority to desist form removal of encroachment
(1) Where the person on whom notice to remove an encroachment has been served under sub-S. (1) of S. 21, lays claim that the land in respect of which encroachment has been alleged is his property or that he has acquired a prescriptive right over it by virtue of adverse possession, he shall within time limit prescribed in the notice for he removal of the encroachment, file a suit in a competent civil court and also get an injunction on the highway authority to desist from taking further action in the matter till the suit has been disposed of.
(2) When such an injunction has been issued, the highway authority or the authorized under sub-S. (1) of S. 21 has under the provisions of the section removed any encroachment or carried out any protection work in respect of any encroachment the actual expenditure involved, together with 15 per cent for overhead charges shall be recovered from the person responsible for the encroachment in the manner hereinafter provided.
Section 23 - Recovery of cost of removal of encroachment
(1) Whenever a highway authority or the officer authorized under sub-S. (1) of S. 21 has under the provisions of the section removed any encroachment or carried out any protection work in respect of any encroachment the actual expenditure involved, together with 15 per cent for overhead charges shall be recovered form the person responsible for the encroachment in the manner hereinafter provided.
(2) A bill representing the actual expenditure and eh overhead charges, shall be served by the highway authority or the authorized officer as the case may be on the person responsible for the encroachment or his representative with a direction to pay up the total amount within a specified date to the authority mentioned in the bill.
(3) The bill shall be accompanied by a certificate from the highway authority or the authorised officer to the effect that the amount of expenditure indicated in the bill represents the charges incurred and such a certificate shall be conclusive proof that the charges had actually been incurred and shall not be questioned in any civil court.
(4) The material, if any, recovered as a result of the removal of any encroachment shall be handed over to the person responsible for the encroachment on payment of the bill by him but the event of his failure to pay up the bill within the specified date, the materials may be auctioned and after deducting the amount of the bill from the proceeds the balance, if any, shall be made over to him.
(5) If the proceeds of the auction sale do not cover the total billed amount, the excess over the amount realized by the sale of materials or if there are not materials to dispose of and the billed amount has not been paid by the person responsible for encroachment within the prescribed date, the entire amount of the bill shall be recovered as arrears of land revenue.
Section 24 - State Government to direct highway authority to take over village tracks for development and maintenance
(1) The State Government may whenever it deems necessary in the public interest, by notification in the official, Gazette, direct a highway authority to take over for road construction or maintenance of any land constituting a village road or track on which the public have, or have established by long usage, a permanent right of way, irrespective of whether such village road or truck has been shown in the settlement records as a public way or not and whether the ownership of such land vests in the State Government or any land lord or a proprietary body.
(2) Such notification shall be given proper publicity such as by beating of drums, distributing pamphlets, displaying on sing-boards, etc. in the locality of the village road or truck.
(3) All such land taken over by the highway authority as a result of the notification issued under sub-S. (1) as are not already deemed to be State Government property, shall be so deemed for purposes of Chapter V and the provisions of that Chapter shall apply fully to such land.
Section 25 - Highway authority to require proprietor of village road to repair the road properly where he is under obligation to do so
(1) Whether there is any obligation by law or by customs or otherwise, or any landlord or proprietary body to maintain a village road or track on which the public have or have acquired a permanent right of way and such road or track is not, in the opinion of any highway authority properly maintained, that authority may issue a notice to the landlord or the proprietor to repair the road or track within such a reasonable time and in such manner as may be specified in the notice.
(2) If at the end of the specified period the repairs have not been carried out in the manner specified, and the landlord or the proprietor has not furnished any satisfactory explanation for non-compliance, the highway authority may move the State Government to transfer control of the way authority may move the State Government to transfer control of the road or truck to it or to any other highway authority under sub-S. (1) of S. 24.
(3) The State Government while directing the transfer of control of such village road or track to any highway authority, may determine whether any, and if so, what portion of the cost of repair which the highway authority may incur shall be recovered from the landlord or the proprietor in discharge of his obligation to maintain the road or track.
Section 26 - Highway authority to acquire reversionary right of proprietors in village road land
(1) Where the control of a village road or track has been taken over by a highway authority as a result of a notification issued under sub-S. (1) of S. 24 and the ownership of the land constituting the road or track vests in a landlord or proprietary body, the highway authority shall acquire by direct negotiation or, failing negotiation by resort to the Land Acquisition Act, 1894, as amended form time to time, the reversionary right, if any, of the landlord or proprietary body to the land by paying suitable compensation.
(2) In determining the compensation payable under sub-S. (1), regard shall be had to the fact that the reversionary right is very remote.
(3) The amount, if any, payable by the proprietor under sub-s. (3) of S. 25 may be set off against the compensation payable to him under sub-S. (1).
Section 27 - Appointment of Planning Boards fro control of development in areas adjoining highways
(1) The State Government shall, by notification in the official Gazette, appoint a Planning Board (hereinafter referred to as the Board) for the control of township development in the State in areas adjoining highways outside the territorial jurisdiction of Municipalities, Corporations, City Improvement Trusts or like Bodies not being District Board :
Provided that the State Government may, if it considers a single Board to be inadequate for handling the work in the whole State, appoint more than one such Board, each for a specified region in the State.
(2) The State Government may, at any time by notification in the official Gazette, add to or reduce the area of jurisdiction of a Board.
(3) A Board, so appointed, shall be a body corporate and having perpetual succession and a common seal and shall sue and be sued by its own name.
Section 28 - Constitution of the Planning Board and transaction of business by it
(1) A Board shall consist of such number of members, official or non-official, being not less than three, as the State Government may, from time to time, determine by notification in the official Gazette.
(2) One of the members of the Board shall be a Highway Engineer, the second Town Planner with knowledge of architecture and the third with experience in land evaluation.
(3) The Board shall meet and transact business in accordance with such rules as may be prescribed by the State Government in this behalf.
(4) Such rules referred to in sub-S. (3), shall also provide for the appointment for a Chairman from among the technical members of the Board, the payment of remuneration and travelling allowance to him and to the other members, and the appointment of staff for the Board.
(5) If any member of a Board owns, or has any interest in, land lying in any area the development of which is controlled by such a Board, he shall maintain regular accounts in accordance with such rules as may be prescribed by the State Government in this behalf.
(6) The Board shall b provided by the State Government with such funds as maybe required for the proper discharge of its function and shall maintain regular accounts in accordance with such rules as may be prescribed by the State Government in this behalf.
Section 28A - Specification of areas where control is to be exercised over development
(1) Whenever a highway authority has reason to believe that an areas adjacent to a highway outside the territorial limit of a Municipality, Municipal Corporation or City Improvement Trust or other like body not being a District Board, is likely to develop into a building or industrial area and that such development if left unregulated is likely in course of time of affect the highway adversely, it shall in writing, request the State Government to direct if the Board have been appointed in the State to control the development in that area.
(2) On receipt of such request from a highway authority or at its own instance, or at the instance of any class of public, and after making such enquiries as may be reasonable, the State Government may, by notification in the official Gazette, direct the Board or the appropriate Board if there is more than one in the State, to exercise control over development in such area :
Provided that the State Government may, at its discretion, direct the adjoining Municipality, City Corporation, City Improvement Trust or other like body to exercise control over such area in accordance with the law under which such body functions within its own limits of jurisdiction.
Section 29 - Survey and demarcation of the area and the preparation of lay-out plan for its development
(1) The Board shall, as soon as possible after it has been notified to exercise control over development in any area, have a survey made of such area and shall have the boundaries thereof demarcated with reference to survey.
(2) The boundaries so demarcated shall be notified by the Board in the official Gazette in such detail as may be necessary for the proper identification of the area.
(3) Within a year of the date of the notification issued under sub-S. (2) or such longer period as may be specially permitted by the State Government in this behalf, the Board shall prepare a lay-out plan of the area showing the sites of proposed roads, parks, play-fields, residential localities, industrial areas, access lanes to the adjacent highway.
(4) The access points to the adjacent highway and the general lay-out plan shall be fixed n consultation with the highway authority concerned.
(5) The lay-out plan so prepared shall be deposited by the Board with the principal Revenue Officer of the district in which such area is located and also in its own office and in the office of the highway authority concerned, and the plan so deposited shall be available for inspection by the pubic free of charges at all reasonable times.
(6) Copies of the plan shall be made available to any interested member of the public on application to the Board and on payment of such reasonable cost as may be fixed by the Board.
Section 30 - Regulation of development in the area
(1) It shall be lawful after a notification has been issued by the Board under sub-s. (2) of S. 29, to construct of re-construct an building in the area so notified, or to layout any means of access in that area towards the adjacent highway without obtaining the prior permission of the Board.
(2) Every person willing to construct or re-construct any structure or lay-out any means of access in that area shall apply to the Board for permission in such form and with such details and plans and together with such fees, if any, as may be prescribed by the Board.
(3) The Board shall as soon as possible after the receipt of an application by order in writing either -
(a) grant the necessary permission, with or without such reasonable conditions as may be specified in the order, if the proposal of the applicant is not inconsistent with the lay-out of the area planned or contemplated, and is otherwise unobjectionable, or
(b) refuse the permission.
(4) If at the expiration of three months from the date of application no order in writing has been passed by the Board permission shall be deemed to have been given without the imposition of any conditions :
Provided, however, that no such automatic grant of permission shall be presumed if the application is for the laying-out of any means of access towards the adjacent highway.
(5) In the event of refusal of permission, the Board shall communicate to the applicant the defects or the objectionable features of the proposal responsible for its rejection.
(6) The applicant may re-submit the proposal to the Board after removing the defects or objectionable features and such application shall be disposed of by the Board under sub-s. (3) as if it were a fresh application.
(7) If in course of execution of any work after obtaining the permission of the Board the applicant desires to make any substantial alteration in the approved plan, a fresh application shall be made to the Board as if the modified plan constituted as fresh proposal and pending the disposal of such fresh application by the Board under sub-S. (3), the construction work shall be suspended by the applicant.
(8) Any person feeling aggrieved by an order issued by the Board under sub-S. (3) sanctioning any proposal subject to conditions or rejecting it, may, within three months of the date of the order of the Board, prefer an appeal to the State Government whose order in the matter shall be final.
(9) If any person constructs or re-constructs any structure or lays out any means of access without obtaining the permission of the Board, of where permission of the Board has been obtained, makes, in course of execution of the work any substantial deviation from the approved plans the Board may, without prejudice to any other proceeding which my be taken against him, have the structure removed or the means of access closed and recover from him the expenditure involved, together with 15% departmental charges, in accordance with the procedure prescribed under S. 23, in so far as that procedure is applicable.
(10) The Board shall be sole judge of what constitutes substantial deviation from the approved plan for purposes of sub-S. (9).
Section 31 - Planning Board to acquire land for planned development, where necessary
(1) Where after the issue of a notification under sub-S. (2) of S. 29, it appears to the Board that the planned development of the notified area can be secured only by acquiring land in that area, it may, with the prior consent of the State Government, acquire entire area or such part of it as may be considered necessary, either by direct negotiation with the owner or filling such negotiation, by resort to the provisions of the Land Acquisition Act, 1894 as amended from time to time.
(2) Such area, as may be acquired under sub-S. (1), shall be properly laid out by the Board, the necessary improvement effected and sites assigned, sold or leased to the public for a specified period not exceeding 9 years for construction according to approved plans.
Section 32 - Planning Board to decide on levy of betterment tax with the consent of the State Government who shall determine the rate of levy
(1) Where a Board is of the opinion that the value of land in any area in its charge is likely to increase as a result of the development at public expense of any area adjoining a highway, it may, with previous consent of the State Government, decide to levy a betterment tax in respect of such area :
Provided that where in pursuance of S. 31, the Board has acquired any area and haws had it properly laid out and sold or leased to the public not betterment tax shall be levied in respect of such area.
(2) The State Government, when approached by the Board under sub-S. (1), for its consent to the levy of betterment tax in any areas shall, while giving such consent, determine percentage rate, not exceeding 80% of the betterment value, at which the tax shall be levied in such area and communicate the same to the Board.
(3) Where it is decided to levy a betterment tax in respect of any area, the Board shall cause the decision to be notified in the official Gazette and shall also secure further publicity to the notification in the manner prescribed under sub-S. (4) of S. 11.
(4) The notification shall specify -
(a) exact areas in which the betterment tax is to be levied;
(b) the date on which the prevailing land value shall be deemed to be the basic value for purposes of commuting betterment; and
(c) the percentage rate of betterment tax shall be levied, as determined by the State Government under sub-S. (2).
(5) When the development or improvement of the area adjoining the highway has been completed or, in the opinion of the Board has reached a stage, sufficiently advanced to enable the resulting betterment to be determined, the Board shall notify in the official Gazette the date on which the execution of the scheme has been completed or shall be deemed to have been completed and shall also cause further publicity to such notification in the manner prescribed under sub-S. (4) of S. 11.
Section 33 - Computation of betterment value
(1) For land which has already been built upon or on which permission to build has already been accorded before the date of notified under sub-S. (5) of S. 32, betterment value shall be the value on that date less the basic value as computed with reference to the date notified under sub-S. (4) of the section less the estimated cost of improvement work, if any, carried out by the owner between the two dates.
(2) For land which on the date of notified under sub-S. (5) of S. 32 has neither been build upon nor in respect of which permission to build has been accorded before that date, the betterment value shall be the value on the date when permission to build is granted less the basic value as computed with reference to the date notified under sub-S. (4) of S. 32, less the estimated value of improvement, if any, carried out by the owner between the two later dates.
Section 34 - Assessment of betterment tax
(1) The Board shall, at any time after a month of the publication of the notification under sub-S. (5) of S. 32, assess the amount of betterment tax payable by every individual owner of land, and shall serve a notice on him in writing in the prescribed manner, specifying the amount of tax payable by him the details of calculation, the installments, if any, which payment may be made, to date or dates on or before which payment of the full amount of the installment shall be made, and the authority to whom payment shall be tendered.
(2) Any person on whom a notice for payment of betterment tax has been served under sub-S. (1) may within one month from the date of service of such notice, file and objection before the Board in respect of the assessment made against him : provided that the Board shall have discretion to entertain objections even after the expiry of the period of one month if it is satisfied that the failure to file such objections in time was due to cause beyond the control of the objector.
(3) After an opportunity has been given to the objector of being heard in person or through pleader the Board may confirm, modify or cancel the assessment made under sub-S. (1).
(4) Any person aggrieved by the order issued by the Board under sub-S. (3) may, within two months from the date of such order, appeal to the appropriate civil court.
(5) If any person on whom a notice has been served under sub-S. (1) fails to file any objection under sub-S. (2) the assessment shall be conclusive and shall be questioned in any court of law.
Section 35 - Betterment tax to be made a charge on his interest in the land
(1) The person liable to pay a betterment tax may at his option instead of making a lump sum payment or payment by instalment where allowed by the Board, execute and agreement with the Board or any other authority specially authorised by the State Government in this behalf to leave the said liability outstanding as a charge on his interest in the land subject to the payment in perpetuity of interest at the rate of 6% per annum.
(2) A person who has exercised his option under sub-S. (1) may at any time after giving six months' notice of his intention so to do, redeem the charge of paying the assessed amount of betterment tax or such part of it as may have been outstanding against him at the time he executed the agreement under sub-S. (1).
Section 36 - Arrears of betterment tax to be recovered as arrears of land revenue
Arrears of betterment tax shall be realised in the manner provided for the recovery of arrears of land revenue.
Section 37 - Appropriation of the proceed of betterment tax
The proceeds of the betterment tax, levied in any areas shall, after deduction of the assessment and collection charges, be made over by the Board to the State Government.
Section 38 - Prevention of cover structure view or distraction of attention of persons using any highway
(1) Where a highway authority is of opinion that it is necessary for the prevention of danger arising from obstruction of the view of distraction of the attention of person using any highway, specially at any bend or corner of the highway it may serve a notice upon the owner or occupier of land along side or at the bend or corner of such highway to alter or remove altogether, within such time and in such a manner as may be specified in the notice, the height or character of any existing may be specified in the notice, the height or character of any existing wall (not being a wall forming part of a permanent structure), fence, hedge, tree, advertisement post, bill board or any other object thereon, so as to eliminate or minimise the apprehended danger.
(2) If any person upon whom a notice has been served under sub-S. (1), objects to comply with any requirement of such notice, he may, within 14 days of its receipt send to the highway authority his objection in writing stating the grounds thereof.
(3) The highway authority shall within 14 days of the receipt of the objection consider the grounds advances and shall, by order in writing either withdraw the notice or amend confirm it.
(4) If a person is aggrieved by an order issued by a highway authority under sub-S. (3) he may prefer an appeal within 7 days of the date of such order to the Collector or Chief Revenue Officer of the district, whose decision in the matter shall be final.
(5) If any person fails to comply with the notice served on him under sub-S. (1) as amended or confirmed, as the case may be under sub-S. (3) or (4), the highway authority may take action to alter or remove the object causing obstruction or distraction of view at its own expense and such expenditure together with 15% departmental charges, shall be recovered from such person in accordance with the provisions of S. 23 without prejudice to any other action which may be taken against him.
Section 39 - Highway authority to regulate traffic when highway is deemed unsafe
If at any time it appears to a highway authority that any highway in its charge or any portion thereof is or has been rendered unsafe for vehicular or pedestrian traffic by reason of damage or otherwise, it may, subject to such rules as may be prescribed in this behalf, either close the highway or the portion of it to all traffic or to any class of traffic, or regulate the number and speed of vehicle using the highway.
Section 40 - Prohibition of us of heavy vehicle on certain highway
Where the highway authority is satisfied that the surface of any highway, or a portion thereof, or any bridge, culvert or cause-way built on or across any highway is not designed to carry vehicles of which the laden weight exceeds of certain limit, it may, subject to such rules as may be prescribed in this behalf, prohibit or restrict the plying of such vehicles on or over such highway or such part of the highway or such bridge, culvert or cause-way.
Section 41 - Power of highway authority to control traffic to be exercised through the authority appointed under Part V to control traffic
(1) Where, in pursuance of sub-Ss. (c) and (d) of S. 7 or in exercise of the powers under S. 39 or S. 40 the highway authority desires temporarily to close any highway or part of it to traffic or to restrict or regulate traffic thereon in any manner, it shall in writing request or regulate traffic thereon in any manner, it shall in writing request the authority authorized to control traffic under Part V of this Act to enforce the restrictions in the said manner.
(2) Where such a request has been received from a highway authority, the authority empowered under Part V to control traffic shall take all necessary measures to enforce the said restrictions in accordance with the provisions of that Part.
Section 42 - Procedure to be followed when highway authority wished permanently to close any highway
(1) Where, in pursuance of sub-S. (c) of S. 7 or in exercise of S. 39, a highway authority desires permanently to close down any highway or part thereof, it shall give notice of its intention so to do in the official Gazette, and shall cause further publicity to be given to the notice in the manner prescribed under sub-S (4) of S. 11.
(2) The notice shall indicate the alternative route, if any, which is proposed to be provided or which may already be in existence, and shall also invite objection, if any, to the proposal to be submitted within such time as may be specified.
(3) The highway authority shall finalise its proposal to close down any highway or part of it after considering the objections, if any, received within the specified time, and shall submit the final proposal to the State Government for approval together with such objections as any have been received against the proposal.
(4) The State Government may either approve the proposal, with or without modifications, or reject it.
(5) When the State Government has approved the proposal, it shall published its orders in this official Gazette.
(6) When the orders of the State Government have appeared in the official Gazette, the highway authority shall arrange for further publicity to be given to the orders in the manner prescribed under sub-S. (4) of S. 11, and the highway or part thereof shall then be closed.
(7) Whenever any highway or any part thereof has been so closed reasonable compensation shall be paid to every person who was entitle otherwise than as a mere member of the public to use such highway or part as a means of access to or from his property and has suffered damage for such closing.
(8) Where an alternative route has been provided or is already in existence the amount of compensation payable to any person under sub-S. (7) shall, in no case exceed the cost of laying a new means of access from his property to such alternative route.
(9) Were compensation is payable under sub-S. (7), the claimant shall, within 3 months of the closing of the highway or part, make to the State Government his claim for compensation, and such claim shall be disposed of in accordance with the provisions of sub-S (1) of S. 18.
Section 43 - Consent of highway authority required to do certain act on highways
(1) Notwithstanding anything contained in any other enactment for the time being in force, no person other than a highway authority or its authorised agent shall contract or carry any cable wire, pipe, drain, sewer or channel or any kind through, across, under on over any highway, except with the specific consent of the highway authority.
(2) In giving its consent the highway authority may impose such condition as it may deed to be necessary and may also impose a rent or other charge for any land forming part of the highway occupied or applied to the proposed work.
(3) If any person constructs or carries out any work in contravention of sub. S. (1), the highway authority may arrange for the removal of such work and restoration of the highway to its former condition in accordance with the previsions of S. 21 as if the work constituted an encroachment on the highways and such expense as the highway authority may incur for this purpose, together with 15% department charges thereon, shall, without prejudice to any other action that may be taken against such person, be recovered from him in accordance with the procedure prescribed under S. 23 in so far as that procedure is applicable.
Section 44 - Prevention and rectification of damage to highway
(1) No person shall willfully or negligently cause, or allow any vehicle or animal in his charge to cause any damages to any highway.
(2) Where in contravention of sub. S. (1) any damage has been cause to any highway, the authority shall have the damage repaired and the expensed involved, together with 15% departmental charges, shall, without prejudice to any other action that may be taken against the person responsible for the contravention of sub-S. (1), be recovered from him in accordance with the procedure prescribed under S. 23 in so far as that procedure is applicable.
Section 45 - State Government to order survey and appoint Survey Officer when so requested by the highway authority
(1) Where in pursuance of sub-S. (3) of S. 8, a highway authority wished to have a survey made with a view to the preparation of authoritative plan or plans for any highway in its charge, it shall request the State Government in writing to order the survey and appoint a Survey Officer for the purpose.
(2) If, on receipt of such request and after making such further enquires as may be deemed necessary, the State Government is satisfied about the need for such survey, it may, by notification published in the Official Gazette, order that the proposed survey shall be made and shall simultaneously appoint a Survey Officer for the purpose.
Section 46 - Survey Officer to publish notification
(1) When a survey has been ordered under S. 45, the Survey Officer appointed for the purpose shall publish a notification in the official Gazette inviting all persons having or claiming to have any interest on the land adjoining highway or its boundaries of which the survey has been ordered, to attend either in person or by agent at a specified place and time and from time thereafter when called upon for the purpose of pointing out the boundaries and supplying information in connection therewith.
(2) The Survey Officer shall cause further publicity to be given to the notification issued by him under sub-S. (1) in the manner prescribed in sub-S. (4) of S. 11.
(3) A notification published in accordance with sub-S. (1) and further published in accordance with sub-S. (2) shall be held to be valid notice to every person having or claiming to have any interest in the land or boundaries of which the survey has been ordered.
Section 47 - Survey Officer to give special notice to highway authority to have representation if necessary
(1) The Survey Officer shall give a special notice to the highway authority concerned intimating the date and time from which the survey of the highway shall be carried out.
(2) The highway authority shall on receipt of such special notice take such steps as may be deemed necessary to watch the survey proceedings and to make representation to the Survey Officer whenever it has reason to believe that the interests of the highway are being or likely to be adversely affected.
Section 48 - Power of Survey Officer to determine and record undisputed boundary
(1) The Survey Officer shall have power to determine and record as undisputed any boundary in respect of which no dispute is brought to this notice.
(2) Notice of every decision of the Survey Officer under sub-S. (1) shall be given in the prescribed manner to the registered holders of the land the boundaries of which may be affected by the decision and also to the highway authority concerned.
