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The Public Prosecutor Vs. A.V. Harihara Iyer - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1948Mad219; (1947)2MLJ466
AppellantThe Public Prosecutor
RespondentA.V. Harihara Iyer
Excerpt:
.....the prosecution must fail. there can be no doubt whatever that the prosecution and the accused as well as the court; the case for the prosecution is that the appellant failed to remove an alleged encroachment in spite of notice under section 159(1) of the local boards act (xiv of 1920)..the fact that the word 'vacate' has been used in parts' of the evidence and in the complaint could not have misled-and i find did not mislead the accused or the court in any manner......the accused in c.c. no. 198 of 1946 on his file of an offence under section 159(1) of the madras local boards act punishable under section 207(1) of the madras local boards act and sentenced him to pay a fine of rs. 100 ; in default to suffer simple imprisonment for two weeks. there was an appeal to the sub-divisional magistrate, ariyalur, and he set aside the conviction and sentence and acquitted the accused. the crown appeals.2. the prosecution was in respect of an alleged encroachment on a street called vellala street in ariyalur town. the encroachment was in the shape of a tiled shed and a big masonry arch. these were part of the house of which the accused was an occupier. the grounds on which the sub-divisional magistrate acquitted the accused were:(1) that as there was an owner.....
Judgment:

Rajamannar, J.

1. The Sub-Magistrate, Ariyalur, convicted the respondent who was the accused in C.C. No. 198 of 1946 on his file of an offence under Section 159(1) of the Madras Local Boards Act punishable under Section 207(1) of the Madras Local Boards Act and sentenced him to pay a fine of Rs. 100 ; in default to suffer simple imprisonment for two weeks. There was an appeal to the Sub-Divisional Magistrate, Ariyalur, and he set aside the conviction and sentence and acquitted the accused. The Crown appeals.

2. The prosecution was in respect of an alleged encroachment on a street called Vellala Street in Ariyalur town. The encroachment was in the shape of a tiled shed and a big masonry arch. These were part of the house of which the accused was an occupier. The grounds on which the Sub-Divisional Magistrate acquitted the accused were:

(1) that as there was an owner residing in the town the action of the District Board in prosecuting the occupier 'cannot be regarded as being consistent with the spirit of the provisions of law applicable to the case'

(2) the prosecution failed to file the survey sketch in proof of encroachment;

(3) the notice requiring the accused to vacate was not proved or filed as an exhibit for the prosecution.

3. It is impossible to support ground No. (1) of the Sub-Divisional Magistrate. The section is unambiguous in its terms as it enacts that the Local Board may by notice require 'the owner or occupier of any premises to remove or alter any projection, encroachment or obstruction.' The Magistrate was apparently aware that the Act gives the option to the president of the Local Board to charge either the owner or the occupier. Having found that it was so, he was not warranted in trying to resort to what in his opinion was the spirit of the provisions of law. It was contended by the learned advocate for the accused that you should so construe the section as to mean that the Local Board should prosecute either the owner or the occupier according to whoever is found to be the person making the encroachment or obstruction in question. There is nothing in the terms of the enactment, which compels me to adopt this construction. The prosecution was certainly not illegal, because it was directed against the occupier.

4. I am surprised that the Sub-Divisional Magistrate should have observed that the fact that a survey sketch was not filed weakened the prosecution case. There was a sketch filed by P.W. 1, the Local Fund Overseer, Ariyalur, showing the encroachments and containing the relevant measurements. (Exhibit P. 2). The trial Magistrate says as follows:

The correctness of the sketch or its measurements had not been challenged by the accused and nothing can be said against it.

I do not see therefore anything in this point that the prosecution has failed to prove that there was an encroachment; nor do I see any reason why the original survey sketch should have been filed if the plan (Exhibit P-2) prepared by the overseer is proved by the overseer himself and its accuracy was not challenged at the trial.

5. The third ground is that the notice had not been proved and exhibited in the case. I am again surprised that this ground should have found favour with the Sub-Divisional Magistrate. I am unable to find anything in the record to cast any doubt in the matter. It is not disputed that there was a notice served on the accused and in fact it cannot be, because we have on record Exhibit P-4 which purports to be a reply on behalf of the accused to the notice served on him in respect of the encroachment in question. P.W. 2 deposed that a registered notice was issued to the accused. No ground was taken by the accused in his memorandum of appeal to the Sub-Divisional Magistrate that he was not in receipt of a notice under Section 159(1).

6. None of the three grounds therefore, on which the Sub-Divisional Magistrate found the accused not guilty can be sustained.

7. In this Court Mr. A.V. Narayanaswamy Ayyar, the learned Advocate for the accused raised two further points. The first was that in the complaint the offence was described to be that the accused had not vacated the encroachment and not that he had not removed the encroachment and on account of this flaw the prosecution must fail. There can be no doubt whatever that the prosecution and the accused as well as the Court; all understood what the case was about. The case for the prosecution cannot be more accurately summed up than in ground ' No. 2 of the grounds of appeal on behalf of the accused in the lower Court thus:

The case for the prosecution is that the appellant failed to remove an alleged encroachment in spite of notice under Section 159(1) of the Local Boards Act (XIV of 1920)....

The fact that the word 'vacate' has been used in parts' of the evidence and in the complaint could not have misled-and I find did not mislead the accused or the Court in any manner. To demonstrate that this is so it is enough to refer to the examination-in-chief of P.W. 2, the Local Fund Inspector. He says that he issued a notice asking the accused to vacate the tiled shed and the concrete koradu and winds up by saying ' The encroachments are still existing. They have not yet been removed.' It is also clear that this point was never made even in the lower appellate Court. I find no substance whatever in this contention and I find that the accused has not been prejudiced in any way by this possibly inartistic use of the word 'vacate'.

8. The other point pressed by Mr. Narayanaswami Ayyar on behalf of the accused was that the District Board could not validly launch any prosecution because the street in question did not vest in the District Board. On behalf of the prosecution Exhibit P-1, a notification purporting to be under Section 62 of the Local Boards Act, 1920, was filed. According to that notification the street in question was one: of the streets, which was declared to vest in the District Board, Trichinopoly, from 1st April, 1936. This along with other streets mentioned in the notification had-vested previous to the notification in the Panchayat Board, Ariyalur. The contention of the learned advocate for the accused was that under Section 62 the District Board could not declare that any property vested in any Local Board in the same district shall vest in itself; that is to say, the District Board may declare that a street vested in a particular Panchayat shall vest in another Panchayat in the same district and not that the street shall vest in the District Board itself, but I do not see-any warrant for so restricting the meaning of the words ' any other local Board ' as to exclude the District Board which would certainly be a local Board in the same district from the operation of the section. I do not agree therefore in this contention raised on behalf of the accused.

9. The conviction of the accused by the Sub-Magistrate was proper and ought not to have been set aside by the Sub-Divisional Magistrate. The appeal is therefore allowed and the acquittal of the accused is set aside. I convict the accused of an offence under Section 159(1) read with Section 207(1) of the Madras Local Boards Act (XIV of 1920). So far as the sentence is concerned, it does appear that the encroachment was not very recent and though this fact may not render the accused less guilty, I take this fact into account. I sentence him to pay a fine of Rs. 50 ; in default to undergo one week's simple imprisonment.


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