Control of National Highways (Land and Traffic) Act, 2002- Sections 38 to 50

Chapter VI

REGULATION OF CONSTRUCTION ON HIGHWAY LAND FOR PUBLIC UTILITIES, DRAINS, ETC.

38. Construction on highway land.

38. Construction on highway land.— (1) Notwithstanding anything contained in any other law for the time being in force, no person other than a Highway Administration or a person authorised by such Administration in this behalf shall construct, install, shift, repair, alter or carry any poles, pillars, advertisement towers, transformers, cable wire, pipe, drain, sewer, canal, railway line, tramway, telephone boxes, repeater station, street, path or passage of any kind on highway land or across, under or over any Highway except with the prior permission in writing of the Highway Administration for such purpose.

(2) Any person who intends to obtain the permission under sub-section (1) shall make an application in the prescribed form to the Highway Administration containing therein the purpose and period of occupancy of Highway, location and part of the Highway to be occupied, method of execution of work, period of construction and method of restoration of such part of the Highway.

(3) The Highway Administration shall consider the application made under sub-section (1) and if it is satisfied that there is no alternative other than the Highway in respect of which the permission is sought under the application where the land can be found to locate the public utility, it may give permission in writing as sought in the application:

Provided that while giving such permission, the Highway Administration may impose such conditions as it may deem fit to protect—

(i) the Highway from damage; and

(ii) the traffic on the Highway from obstruction,

and may also impose such fees and other charges as may be prescribed on the person to whom such permission is given in respect of any land forming part of the Highway, occupied or applied to the proposed work or construction under permission and also impose on such person the expenditure, if any, incurred by the Highway Administration for repairing any damage caused to the Highway by laying or shifting of any structure, article or equipment under the permission.

(4) If any person, in contravention of sub-section (1), makes any construction or carries out any other work, the Highway Administration may, at its own expenses, cause such construction or other work to be removed from the Highway and restore the Highway in the condition as it was immediately before giving permission for such construction or other work under sub-section (3) and such expenses together with fifteen per cent thereof as additional charges and fine imposed by the Highway Administration taking into account the nature of the damages caused by such construction or other work, which shall not be less than five hundred rupees per square metre of land used for such construction or other work, but shall not exceed the cost of such land, shall be recovered from such person in accordance with the provisions contained in Section 27 as if such expenses, additional charges and fine were the expenses, additional charges and fine recoverable under that section.

Chapter VII

OFFENCE AND PENALTY

39. Offence and penalty.

39. Offence and penalty.— (1) If any person, who has been evicted from any unauthorised occupation on a highway land under this Act, again occupies any highway land without permission for such occupation under this Act, he shall be punishable with imprisonment for a term which may extend to one year, or with fine which shall not be less than one thousand rupees per square metre of so occupied highway land but which shall not exceed two times the cost of such highway land, or with both.

(2) Any court, convicting a person under sub-section (1), may make an order for evicting that person from such occupied highway land summarily and he shall be liable to such eviction without prejudice to any other action that may be taken against him.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offence punishable under sub-section (1) shall be cognizable.

Chapter VIII

MISCELLANEOUS

40. Right of appellant to take assistance of legal practitioner.

40. Right of appellant to take assistance of legal practitioner.— A person preferring an appeal to the Tribunal under this Act may either appear in person or take the assistance of a legal practitioner of his choice to present his case before the Tribunal.

41. Finality of orders.

41. Finality of orders.— Save as otherwise expressly provided in this Act, every order made or any action taken by the Highway Administration or the officer authorised in this behalf by such Administration or every order passed or decision made on appeal under this Act by the Tribunal shall be final and shall not be called in question in any original suit, application or execution proceeding and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act to the Highway Administration or Tribunal.

42. Duty of village officials.

42. Duty of village officials.— Wherever any village headman, village accountant, village watchman or other village official, by whatever name called, becomes aware of any offence involving unauthorised occupation, damage or destruction of the highway land, he shall forthwith inform the nearest police station or the nearest Highway Administration or any officer authorised in this behalf by such Administration, the commission of such offence and shall also be duty bound to assist the Highway Administration and its officers in prosecuting the offender of the offence.

43. Conduct of inquiry.

43. Conduct of inquiry.— The Highway Administration or the officer authorised in this behalf by such Administration shall, if he desires to make any inquiry for the purposes of this Act, make a summary inquiry in such manner as may be prescribed.

44. Officers of Highways Administration to be public servant.

[i][44. Officers of Highways Administration to be public servant.— The officer or officers constituting the Highways Administration and any other officer authorised by such Administration under this Act, shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this Act, to be public servants within the meaning of Section 21 of the Indian Penal Code (45 of 1860).]

45. Protection of action taken in good faith.

45. Protection of action taken in good faith.— No suit, prosecution or other legal proceedings shall lie against the Central Government or [ii][any other officer of the Central Government] or the officer or officers constituting the Highway Administration or any other officer authorised by such Administration under this Act or any other person, for anything which is in good faith done or intended to be done under this Act or the rules made thereunder.

46. Offences by companies.

46. Offences by companies.— (1) Where an offence punishable under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where any offence punishable under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.—For the purposes of this section,—

(a) “company” means any body corporate and includes a firm or other association of individuals; and

(b) “director”, in relation to a firm, means a partner in the firm.

47. Procedure for service of notices, etc..

47. Procedure for service of notices, etc..— Save as otherwise provided in this Act, every notice or bill issued or prepared under this Act may be served or presented in such manner as may be prescribed.

48. Act to have overriding effect.

48. Act to have overriding effect.— The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

49. Power to remove difficulties.

49. Power to remove difficulties.— (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act, as appear to it to be necessary or expedient for removing the difficulty:

Provided that no such order shall be made under this section after the expiry of three years from the commencement of this Act.

(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.

50. Power to make rules.

50. Power to make rules.— (1) The Central Government may, after previous publication, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—

(a) the manner of exercising powers and discharge functions under sub-section (3) of Section 3;

(b) [iii][* * *]

(c) [iv][* * *]

(d) [v][* * *]

(e) [vi][* * *]

(f) the additional matters in respect of which the Tribunal may exercise the powers of a civil court under clause (h) of sub-section (3) of Section 16;

(g) the manner for maintaining the records of the Highway Administration in which the lands are shown and the manner of proving claim for correction of such records under sub-section (2) of Section 23;

(h) the conditions subject to which, the rent and other charges on payment of which and the form in which permit may be issued for grant of permission under sub-section (2) of Section 24;

(i) the conditions, payment of rent and other charges for grant of lease or licence of highway land under Section 25;

(j) the form of notice under sub-section (2) of Section 26;

(k) the feasible cost for making construction including alteration of any construction under sub-section (8) of Section 26;

(l) the additional matter in respect of which the Highway Administration or an officer authorised by such Administration in this behalf may exercise the powers of a civil court under clause (d) of sub-section (9) of Section 26;

(m) the form of the bill under sub-section (2) of Section 27;

(n) the form of application, the fee to be accompanied therewith and the terms and conditions for permission under sub-section (2) of Section 29;

(o) the form of licence, the period and the manner of renewal of such licence under sub-section (3) of Section 29;

(p) the limit of laden weight and the provisions subject to which the plying of vehicles may be prohibited or restricted under Section 32;

(q) the traffic signs to be placed or erected under Section 35;

(r) the safety and control for allowing any vehicle or animal to stand or proceed on a Highway under sub-section (1) of Section 37;

(s) the manner of handing over the vehicle or animal to the owner and payment of expenses incurred in the removal of such vehicle or animal under sub-section (2) of Section 37;

(t) the form of application under sub-section (2) of Section 38;

(u) the fees and other charges to be imposed under sub-section (3) of Section 38;

(v) the manner of summary inquiry under Section 43;

(w) the manner of service or presentation of notice or bill under Section 47; and

(x) any other matter which is required to be, or may be, prescribed.

(3) Every rule made or every notification issued by the Central Government under this Act shall be laid, as soon as may be after it is made or issued, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule or notification should not be made or issued, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification.

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