P. Jaganmohan Reddy, J.
1. This appeal by special leave is against the judgment of the Bombay High Court confirming the conviction of the appellants under Sections 447 and 426 of the Indian Penal Code but enhancing the sentences after giving notice to the appellants.
2. Respondent 2 Ramkrishna who is the owner of survey Nos. 45 and 48 in the village of Jamni, filed a complaint on July 23, 1963 against the appellants and some others, in all ten in number, that these persons had come to his land and removed an embankment on survey No. 45 and thereby committed of fences punishable under Sections 143, 477 and 426 I.P C. The I Class Magistrate Warera, convicted the appellants of the offences with which they were charged and sentenced each of them to pay a fine of Rs. 75/- under Section 143, in default to suffer rigorous imprisonment of 15 days Rs. 10/- under Section 447 and Rs. 15/- under Section 426 I.P C., in default to suffer rigorous imprisonment for a farther period of 7 days on each count. The remaining accused who were labourers were given the benefit of doubt and acquitted. The Sessions Judge, Chandrapur, in appeal confirmed the conviction and sentences under Sections 447 and 426 but acquitted them and under Section 143 I.P.C. The High Court of Bombay in revision as already stated, maintained their convinction but enhanced the sentences. The first appellant Nil Kanth was sentenced to 15 days' rigorous imprisonment and to pay a fine of Rs. 50/- under each court, in default to suffer further rigorous imprisonment for 15 days. Accused 2 to 5 were each sentenced to one week's R.I. and to pay a fine of Rs. 15/- under each count, in default to suffer further rigorous imprisonment for 7 days. All these sentences were made to run concurrently. The court further directed that out of the fine when recovered the complainant be paid Rs. 50/- as a compensation for the damage done to his property.
3. The facts upon which the convinction is based are not really in dispute. It appears that on October 20, 1962 the Patwari of the village reported that respondent 2 and some other persons had encroached on the cartway belonging to the Panchayat. On November 2, 1962, the Panchayat decided that the persons who were named in the report be summoned and their explanations taken. Accordingly, on June 12, 1963, notices were issued among others to the complainant asked him to be present on June 14, 1965 which notice he is said to have received on June 13, 1963. The complainant however did not turn up on that day. The Panchayat again met on June 18, 1963 and decided to issue another notice but it is said that the second respondent refused to take it. On July 16, 1963, the Panchayat met again and directed that the encroachment be removed. In compliance with this resolution the appellants on July 23, 1963, taking the help of some labourers went to the place of the incident and removed the encroachment The complainant stages that all these resolutions are got up at the instance of the Sarpanch to further his personal grudge against him and were not genuine.
4. The defence of the accused is that all open sites, waste, vacant, or grazing land or public roads' and streets and bridges, dikes, and fences, well, river beds, tanks, streams, lakes, nalas, etc, vest in the Panchayat under Section 51 of the Bombay Village Panchayat Act, 3, 1959, by virtue of which power they had on the report of the Patwari that encroachments were made on the Panchayat land, removed the encroachment which they were empowered to do and as such they were indemnified under Section 180 of the said Act. The complainant, on the other hand, states that the action of the appellants was actuated by ill-will and was vindictive in character. According to the complainant he had contested the Gram Panchayat election held in the year 1962 from ward 2 of the village. But his group was defeated at the hands of the first appellant and his party who came into power and in due course the first appellant became the Sarpanch of the village. Immediately thereafter the first appellant with the help of other members belonging to his party took steps to forcible encroach on his property with a view to wreak vengeance against him.
5. It is contended before us Mr. Mudholkar learned counsel for the appellants that the action taken by the accused was in accordance with the power conferred on the Panchayat by the Bombay Village Panchayat Act and that their action was bona fide in that they had acted on the report of the Patwari who was competent to measure the land and determine what encroachments there were upon the Panchayat lands and by whom they were made. The action taken by the Panchayat was, therefore, fully justified and, at any rate, the panchas and the Sarpanch cannot be held responsible for the act of the Panchayat which is a body corporate.
6. We are not impressed with this argument because the facts which are established on the evidence and which have been found by the three courts leave little doubt that the action of the accused mala fide and was actuated by improper motive. Even if Section 160 of the Village Pauchayat Act is applicable, a matter on which we do not wish to express any opinion, it does not help the accused because that section only protects acts done in good faith. It may be pointed out that the complainant has been in possession of survey No. 45 and No. 46 for a long time. The embankment on his land, even according to the accused Sarpanch, was there for over 30 years long before the Panchayat was established for the village. In these circumstances the action of the Sarpanch and the Panchas in determining exeparte on the mere report of the Patwari who had neither the village plan nor the survey record, that the complainant had encroached on the Panchayat lands was reckless and irresponsible. Nor has the accused adduced any evidence to show that in fact the complainant had encroached on the Panchayat land. While Section 51 vests pathways, roads etc. in the Panchayat and Section 53 confers power on it to remove encroachments the crucial question which has to be determined is, whether there is an encroachment. The report of the Patwari given immediately after the election, and as held by all the courts that it was at the instance of the accused, does not by itself establish that the embankment was ah encroachment. Even the report of the Patwari was vague. The complainant had lodged a protest against the action of the Panchayat and brought it to the notice of the higher authorities and there seems to be no real complaint from anybody that there was any obstruction to the use of that pathway. It may also be noticed that even though the Patwari 'had reported that three other persons had also encroached, no action was taken against them and the action of the Panchayat is only confined to the complainant. The accused Nil Kanth Sarpanch was examined as D. W. 1. He admitted that the Patwari did not mention the length and breadth of the alleged encroachment but had simply stated that 2 decimals of land was encroached by the complainant, that he had not submitted any map showing the alleged encroachment, and that at the time they went to demolish the embankment the Patwari simply pointed out the alleged encroachment but he did not actually measure it and they also did not get it measured. It is apparent from this evidence that neither the Patwari nor any of the accused persons could definitely say exactly at what place there was an encroachment and to what extent or even whether the embankment was an encroachment. We are satisfied that the evidence in this case amply justifies the findings of all the courts that the accused not only did not act in good faith but were actuated by mala fides to wreak vengeance against the complainant who belonged to the opposite party. We are in full agreement with the action taken by the High Court of Bombay in enhancing the sentences because persons who have been vested with powers to discharge public functions, ought to be made to realize that the power vested in them is not to be abused either to further their self interest or to wreak vengeance or vendetta against person who cross their path but must be used to further public purpose and achieve public good.