WEST BENGAL HIGHWAYS ACT, 1964

S.1 Section 1 Short title, extent and commencement

       (1) This Act may be called the West Bengal Highways Act, 1964.

       (2) It extends to the whole of West Bengal.

       (3) It shall come into force at once.

S.2 Definitions

       In this Act, unless there is anything repugnant in the subject or context,
       (a) "District Magistrate" includes an additional District Magistrate;

       (b) "encroachment" means any occupation or use of any highway or part thereof by any unauthorised person and includes any projection on, over or under such highway;

       11. Clause (bb) ins. by W.B. Act 31 of 1965. (bb) "Government road" means a road, vested in the Government, or under the control and administration of the Public Works Department of the State Government, and includes-

       (i) the slope, berm, borrow-pits and side-drains of any such road;

S.3 Declaration of highway

       (1) The State Government may, by notification in the Official Gazette, declare any road, street, path, way or land to be a highway.

       (2) Such notification may specify the boundaries of such highway.

       (3) The Highway Authority may demarcate the boundaries of the highway by placing and maintaining stones or other suitable marks at intervals all along the highway in such manner as may be prescribed.

S.4 Public right to use a highway

The right of the public to use a highway shall be subject to the provisions of this Act and the rules made thereunder.

S.5 Appointment of Highway Authority

The State Government may, by notification in the Official Gazette, appoint one or more officers to be Highway Authority for the purposes of this Act.

S.6 Powers and duties of Highway Authority

Subject to such conditions as may be prescribed, the Highway Authority shall exercise powers and discharge duties in accordance with the provisions of this Act relating to the maintenance and control of the highways, the prevention of encroachments thereon and the removal of encroachments therefrom, and matters incidental thereto.

S.7 Staff of the Highway Authority

The State Government may appoint such staff as it deems necessary to assist the Highway Authority.

S.8 Permission to make encroachment

       (1) No person shall make any encroachment without obtaining previous permission in writing of the Highway Authority or any officer not below the rank of an Assistant Engineer authorised by him in this behalf.

       (2) The Highway Authority or such officer may, having due regard to the safety and convenience of traffic and subject to such conditions and on payment of such fee or other charge as may be prescribed, grant a permit to any person to use or occupy temporarily any land appertaining to or adjoining a highway for such period as may be specified therein.

       (3) Any person holding a permit granted under sub-section (2) shall, if required, produce it for inspection before the Highway Authority or any officer authorised under sub-section (1) and shal

S.9 Power to cancel permission

       (1) The Highway Authority may cancel any permit granted under section 8 if

       (a) any fee or charge therefor is not duly paid, or
       (b) the purpose for which the permit was granted has ceased to exist, or
       (c) there is breach of any of the terms and conditions of such permit, or
       (d) the land covered by such permit is required by such authority, or
       (e) the use or the occupation of the land covered by the permit by the permit-holder is causing impediment, obstruction or inconvenience to the use of the highway by the public.

       (2) Where the permit is cancelled under clause (b) o

S.10 Removal of encroachment

       (1) If any person,

       (a) is found to have made an encroachment on any road, street, path, way or land which is declared to be a highway under sub-section (1) of section 3, or
       (b) makes an encroachment on a highway in contravention of the provisions of section 8, or
       (c) does not remove an encroachment on the expiry or cancellation of any permit granted to him, the Highway Authority or any officer authorised by him in this behalf shall serve a notice on him requiring him to remove the encroachment and restore the highway to its original condition within the period specified in the notice.

       (2) If the encroachment is not removed within the time specified in the

Legal Commentary on Section 10 of the West Bengal Highways Act, 1964

Introduction

Section 10 of the West Bengal Highways Act, 1964 provides a statutory framework for the removal of encroachments on highways, ensuring the maintenance and control of roads under the Act. It empowers highway authorities or authorized officers to act against unauthorized occupation or encroachment to safeguard public interest, traffic safety, and the integrity of the highway.

What Does Section 10 Say?

Section 10 stipulates that if any person is found to have made an encroachment on a highway declared under the Act, or contravenes the provisions related to encroachment, the highway authority or authorized officer shall serve a notice requiring removal of the encroachment within a specified period. If the person fails to comply, the authority may proceed to remove the encroachment and recover the costs.

Essential Ingredients

Declaration of highway: The land must be a highway within the meaning of the Act, either by notification or by virtue of being a government road.
Identification of encroachment: Encroachment must be unauthorized occupation or use of highway land.
Notice to the encroacher: The authority must serve a notice under Section 10(1) requiring removal.
Failure to comply: If the encroacher does not remove the encroachment within the specified time, the authority can remove it.
Remedies and appeals: The affected person has the right to appeal under Section 10(4), and the procedure for removal must be followed in accordance with the Act.

Scope of Section 10

Section 10 applies broadly to all highways declared under the Act, including government roads and other roads declared as highways. It covers encroachments made without permission, whether temporary or permanent, and provides the basis for enforcement actions by highway authorities. The section aims to balance public interest, safety, and individual rights through a structured process of notice and legal action.

Punishment for Violations

While Section 10 itself primarily deals with removal procedures, violations such as causing damage or unauthorized encroachment may attract penalties under other provisions of the Act, such as disobedience of orders, damage to highway property, or causing obstruction, which may lead to fines or imprisonment.

Legal Comments

Jurisdiction and applicability - Section 10 applies only to highways declared under the Act, including government roads, as clarified in case law. The land must be classified as a highway, and the authority must act within its jurisdiction [Order in WP 16966(W) of 2017].
Notice requirement - The section mandates serving a notice before removal, ensuring natural justice. Failure to serve proper notice renders subsequent removal illegal [WP 22923(W) of 2014].
Procedural compliance - Actions taken under Section 10 must follow the prescribed procedure, including serving notice, giving opportunity to be heard, and following appeal processes [WP 411(W) of 2018].
Scope of encroachment - Encroachments include any unauthorized occupation, projection, or construction on highway land, whether temporary or permanent [Section 2(b)].
Authority’s power - The highway authority or authorized officer has the power to remove encroachments and recover costs, but must act lawfully and within the limits of the Act [WP 11495(W) of 2018].
Appeal and remedy - The affected person can prefer an appeal under Section 10(4), and courts have held that the authority’s decision must be reasoned and in accordance with law [WP 9708(W) of 2016].
Natural justice - The principles of natural justice require that the encroacher is given an opportunity of hearing before action is taken, failure which invalidates the proceedings [WP 22923(W) of 2014].
Encroachment and public interest - The removal of encroachments is in public interest, safety, and road maintenance, and courts uphold the authority’s action if procedural requirements are met [WP 411(W) of 2018].
Legal safeguards - The Act provides safeguards for individuals against arbitrary removal, including the right to appeal and judicial review [WP 26936(W) of 2013].
Balance of rights - The courts have emphasized that while individual rights are protected, encroachment on highways cannot be permitted as it endangers public safety and traffic flow [WP 412(W) of 2018].
Enforcement and procedure - The authority must follow due process, including serving proper notice, recording reasons, and providing opportunity for representation [WP 22923(W) of 2014].
Case law interpretations - Courts have consistently interpreted Section 10 as requiring strict adherence to procedural safeguards, failure of which nullifies actions [WP 9708(W) of 2016].
Natural justice and legality - Any action taken without notice or hearing violates principles of natural justice and is liable to be quashed [WP 411(W) of 2018].
Protection of highway land - The section aims to protect highway land from unauthorized occupation, and any encroachment must be dealt with decisively and lawfully [WP 11495(W) of 2018].
Appeals and judicial review - The affected party has the right to appeal under the Act, and courts examine whether the authority followed due process before confirming removal [WP 26936(W) of 2013].

In summary, Section 10 of the West Bengal Highways Act, 1964, provides a clear legal mechanism for the removal of encroachments on highways, emphasizing procedural compliance, natural justice, and lawful authority action. Courts have consistently underscored the importance of following due process and safeguarding individual rights while ensuring highway safety and public interest are maintained.

**- WP 22923(W) of 2014- WP 411(W) of 2018- WP 9708(W) of 2016- WP 11495(W) of 2018- WP 26936(W) of 2013- WP 16966(W) of 2017

Legal Comments Summary- Jurisdiction - Section 10 applies to highways declared under the Act, including government roads - [WP 16966(W) of 2017]- Notice requirement - Mandatory serving of notice before removal - [WP 22923(W) of 2014]- Procedural compliance - Must follow due process, including hearing and recording reasons - [WP 411(W) of 2018]- Encroachment scope - Includes unauthorized occupation, projection, or construction - [Section 2(b)]- Authority’s power - To remove encroachments and recover costs lawfully - [WP 11495(W) of 2018]- Appeal rights - Encroacher can appeal under Section 10(4) - [WP 26936(W) of 2013]- Natural justice - Opportunity of hearing is essential - [WP 22923(W) of 2014]- Public interest - Removal in public interest, safety, and traffic safety - [WP 411(W) of 2018]- Legal safeguards - Due process and judicial review protected - [WP 9708(W) of 2016]- Balance of rights - Encroachment endangers public safety; lawful action justified - [WP 412(W) of 2018]

This concise legal commentary underscores the importance of procedural adherence and judicial oversight in actions under Section 10 of the West Bengal Highways Act, 1964.

S.11 Recovery of cost of removal of encroachment

       (1) Any cost incurred by the Highway Authority or the officer authorised under subsection (1) of section 10 in removing any encroachment shall be recoverable from the person responsible for the encroachment in the manner hereinafter provided after giving him an opportunity of making any representation he may wish to make in the matter.

       (2) A notice of demand for such cost shall be served by such authority or officer on such person requiring payment of the same within such time as may be specified in the notice.

       (3) If such person pays the cost of removal within the time specified in the notice referred to in sub-section (2), the materials, if any, obtained on removal of the encroachment shall be made over to him.

S.12 Prohibition or restriction of use of vehicles on certain highways

Where a highway or any portion thereof is not designed to carry vehicles of which the laden weight exceeds such limit as may be fixed by the Highway Authority in this behalf, he may, subject to such conditions as may be prescribed, prohibit or restrict the plying of such vehicles on or over such highway or such part of the highway.

S.14 Power to close highway temporarily or regulate traffic

       (1) If any portion of a highway is in need of immediate repairs or is or has been rendered unsafe for vehicular or pedestrian traffic by reason of damage or otherwise, the Highway Authority may, subject to such conditions as may be prescribed, either close that portion of the highway to all traffic or to any class of traffic temporarily for effecting repairs or protective works, or impose reasonable restrictions in respect of the speed or laden weight of vehicles using such portion of the highway.

       (2) Where under sub-section (1) the Highway Authority closes any portion of a highway temporarily, any land adjoining such protion of the highway may be requisitioned or acquired in accordance with any law for the time being in force for the construction of a temporary diversion road.

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S.15 Prevention of damage to highway

       (1) No person shall cause, by any vehicle or animal in his charge or otherwise, any damage to or obstruction on any highway.

       (2) The Highway Authority or any officer authorised by him may remove any obstruction from the highway and may, if necessary, ask the police for assistance in removing such obstruction.

S.16 Disobedience of orders, etc

Whoever wilfully disobeys any prohibition or restriction imposed under section 13 or section 14, or obstructs any person or authority in the discharge of any functions that such person or authority is required or empowered under this Act to discharge, shall, on conviction, be punished with fine which may extend to five hundred rupees.

S.17 Penalty for removal of boundary mark

Whoever wrongfully removes or tampers with any stones or marks placed by the Highway Authority for demarcating the boundaries of any highway shall, on conviction,be punished with fine which may extend to one hundred rupees.

S.18 Causing damage to highways

Whoever in contravention of subsection (1) of section 15 causes any damage to or obstruction on any highway, shall, on conviction, be punished with fine which may extend to one thousand rupees and shall in addition be liable to pay the cost of repair of such damage or the cost of removal of such obstruction, as the case may be.

S.19 General provision for punishment of offences

       Whoever contravenes any provision of this Act or of any rule or order made thereunder shall, if no other penalty is provided for the offence, be punished, on conviction,
       (a) for a first offence with fine which may extend to five hundred rupees,

       (b) for a subsequent offence with fine which may extend to one thousand rupees.

S.20 Power to compound offences

       An offence committed by any person under this Act may be compounded by any Highway Authority on payment of such sum as such Authority may determine and on payment thereof
       (a) no proceedings shall be commenced against such person; and

       (b) if any proceedings have already been commenced against such person, such proceedings shall not be further proceeded with.

S.21 Certain persons to be public servants

The Highway Authority and the officers and other persons authorised or appointed under this Act shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code.

S.22 Bar of jurisdiction

No Civil Court shall have jurisdiction in respect of any matter which the Highway Authority, or an officer or person authorised under this Act is empowered to deal with under the provisions of this Act.

S.23 Protection of persons acting in good faith

No suit, prosecution or other legal proceedings shall be instituted against any authority or officer or person duly authorised under this Act in respect of anything in good faith done or intended to be done under this Act or the rules or orders made thereunder.

S.24 Service of notice

       A notice issued under this Act may be served,
       (a) by delivering or tendering it or sending it by post to the person to whom it is addresd, or to his agent, or

       (b) if such a person or his agent is not found then by leaving it at his usual or last-known place of abode or by delivering or tendering it to some adult male member of his family:

       Provided that if the address of such person is not known or such person cannot be traced at his last-known address service of notice at the site of the encroachment shall be deemed to be service on him for the purposes of this Act.

S.25 Power to make rules

       (1) The State Government may, by notification in the Official Gazette, and subject to the condition of previous publication, make rules to carry out the purposes of this Act.

       (2) In particular and without prejudice to the generality of the foregoing power, the State Government may make rules for all or any of the following matters:

       (a) the conditions referred to in sub-section (2) of section 8 subject to which use or occupation of any land appertaining to or adjoining a highway may be permitted;
       (b) the conditions subject to which the plying of vehicles may be prohibited or restricted under section 13;
       (c) the conditions subject to which traffic may be clo

S.26 Savings

       Nothing in this Act shall affect
       (a) the rights of any local authority to make any excavation for the purpose of laying, making, altering, repairing or renewing any sewer, drain, water course or other work; or

       (b) the rights of any authority under any law for the time being in force to erect any support or make any excavation for the purpose of laying, making, altering, repairing or renewing any main, pipe, sluice, weir, electric line, duct, drain or other apparatus in respect of gas, water, electricity, railways, tramways or trolly vehicles; or

       (c) any land belonging to a railway administration when such land is held or used by the railway administration for the purpose of its railway; or
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S.27 Provisions of this Act or rules to prevail over inconsistent provisions in other laws

Save as provided in section 26, the provisions of this Act or rules made thereunder shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force.

S.28 Repeal

The Bengal Highways Act, 1925, is hereby repealed.