(1) Whoever makes any encroachment in any land or space not
being private property, whether such land or space belongs to or
vests in the Municipality or not, except steps over drain in any
public street shall on conviction be punished with simple
imprisonment which shall not be less than three months but which
may extend to three years and with fine which shall not be less
than thirty thousand rupees but which may extend to fifty thousand
rupees:
Provided that the court may for any adequate or special
reasons to be mentioned in the judgment impose a sentence of
imprisonment for a term of less than three months.
(2) Whoever makes even temporary obstruction without
prior permission of the Municipality in any land or space not being
private property, whether such land or space belongs to or vests in
the Municipality or not, except steps over drain in any public
street, shall, on conviction, be punished with simple imprisonment
which may extend to one month or with fine which may extend to
five thousand rupees or with both.
(3) The Municipality or any officer authorized by it in this
behalf shall have power to remove any such obstruction or
encroachment and the expenses of such removal shall be paid by
the person who has caused the said obstruction or encroachment.
(4) Whoever not being duly authorized in that behalf
removes earth, sand or other material from any land or space as
aforesaid, shall be punished on conviction with imprisonment
which shall not be less than two months but which may extend to
six months or with fine which shall not be less than thirty thousand
rupees but which may extend to fifty thousand rupees or with both.
(5) Notwithstanding anything contained in the foregoing
provisions, the Municipality or the officer authorized by it in this
behalf shall, in addition to the action taken as provided in this
section, also have power to seize or attach any property alongwith
tools and vehicles found on the land or space referred to in this
section or, as the case may be, attached to such land or space or
permanently fastened to anything attached to such land or space.
(6) Where any property is seized or attached by an officer
authorized by the Municipality, he shall immediately make a report
of such seizure or attachment to the Municipality.
(7) The Municipality may make such orders as it thinks fit
for the proper custody of the property seized or attached, pending
the conclusion of confiscation proceedings, and, if the property is
subject to speedy and natural decay, or it is otherwise expedient so
to do, the Municipality may order it to be sold or otherwise
disposed of.
(8) Where any property is sold as aforesaid, the sale
proceeds thereof after deduction of the expenses of any such sale
or other incidental expenses relating thereto, shall -
(a) where no order of confiscation is ultimately
passed by the Municipality; or
(b) where an order passed in appeal so requires,
be paid to the owner thereof or the person from whom it is seized
or attached.
(9) Where any property is seized or attached under subsection (5), the Municipality may order confiscation of such property.
(10) No order for confiscating a property shall be made
under sub-section (9) unless the owner of such property or the
person from whom it is seized or attached is given -
(a) a notice in writing, informing him of the
grounds on which it is proposed to confiscate
the property;
(b) an opportunity of making a representation in
writing within such reasonable time as may
be specified in the notice against the grounds
of confiscation; and
(c) a reasonable opportunity of being heard in the
matter.
(11) The order of any confiscation and removal of
encroachment under this section shall not prevent the infliction of
any punishment to which the person affected thereby is liable
under this Act.
(12) Any person aggrieved by an order made under subsection (7) or sub-section (9) may, within one month from the date
of the communication to him of such order, appeal against it to the
District Judge of the District in which such property is seized or
attached.
(13) On such appeal the District Judge may, after giving an
opportunity to the appellant and the respondent to be heard, direct
the order to be stayed pending disposal of the appeal, or may
modify, alter or annul the order and make any further orders that
may be just.
(14) Whenever any property is seized or attached pending
confiscation under this section, the Municipality or the District
Judge shall have, and notwithstanding anything to the contrary
contained in any other law for the time being in force, any other
court, tribunal or other authority shall not have jurisdiction to make
orders with regard to the possession, delivery, disposal, release or
distribution of such property.
(15) Where any person is prosecuted of an offence under
sub-section (1), sub-section (2) or sub-section (4), the burden of
proving that he has not committed the offence shall be on him.
(16) Nothing contained in this section shall prevent the
Municipality from allowing any temporary occupation of or
erection in any public street on occasions of festivals and
ceremonies, or the piling of fuel in any streets and spaces for not
more than seven days and in such manner as not to inconvenience
the public or any individual.
(17) Nothing contained in this section shall apply to any
projection duly authorized under sub-section (1) of section 236 or
in any case where permission has been given under sub-section
(16) of this section.
(18) Whoever, being an employee of the Municipality, or
being on deputation with the Municipality from any department of
the Government, specifically entrusted with the duty to remove or
to stop or to prevent the encroachment or obstruction, himself
encroaches or helps others to encroach, or wilfully or knowingly,
neglects or deliberately omits to remove or stop or prevent such
encroachment or obstruction shall, on conviction, be punished with
imprisonment for a term which shall not be less than three months
but which may extend to three years or with fine which may extend
to thirty thousand rupees or with both:
Provided that no court shall take cognizance against such
employee for the offence punishable under this sub-section except
with the previous sanction of the Municipality.
(19) No investigation of an offence under this section shall
be made by an officer below the rank of the Deputy Superintendent
of Police. However, such investigation shall be completed and
report shall be filed in the court within the period of three months
from the date of filing First Information Report on behalf of the
Municipality by the Chief Municipal Officer or the official
authorized by him.
(20) Without prejudice to the provisions of section 298
and other provisions of this Act, it shall be lawful for the Chief
Municipal Officer to lodge proceedings against the person who is
likely to make encroachment upon any Government or municipal
land before the Magistrate concerned, for preventing him from
making any such encroachment and it shall be competent for the
Magistrate, on being satisfied about the reasonableness of the
apprehension of the Chief Municipal Officer, to require such
person to execute a bond, with or without sureties, for his good
behavior for such period, not exceeding one year, as the Magistrate
thinks fit. The procedure contained in Chapter VIII of the Code of
Criminal Procedure, 1973 (Central Act No. 2 of 1974) shall apply
mutatis mutandis to the proceedings before the Magistrate under
this sub-section as if such proceedings were the proceedings under
section 107 of the Code of Criminal Procedure, 1973 (Central Act
No. 2 of 1974).
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