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The Public Prosecutor Vs. Varadarajulu Naidu - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1925Mad64; (1924)47MLJ470
AppellantThe Public Prosecutor
RespondentVaradarajulu Naidu
Cases ReferredSrirangam v. Subba Pandithar
Excerpt:
- - the accused refused to comply with the order on the ground that there was no encroachment and thereupon lie was prosecuted under section 313 by the municipal council for having failed to comply with the requisition lawfully made in pursuance of the provisions of the act. on this finding of fact the order of acquittal was clearly justified. 6. in this the magistrates were clearly wrong. 18. i would like to add that it is extremely undesirable that cases of this description involving difficult questions of fact or of law should be directed to be tried by a bench of honorary magistrates......been alleged that a compound wall built by the accused in front of his house encroached upon a public street. the accused refused to comply with the order on the ground that there was no encroachment and thereupon lie was prosecuted under section 313 by the municipal council for having failed to comply with the requisition lawfully made in pursuance of the provisions of the act. the accused was tried by a bench of magistrates and they found that the wall was not built upon a part of the public street, that the portion occupied by the wall never formed a part of the street and that therefore there was no encroachment. on this finding of fact the order of acquittal was clearly justified. it is, however, faintly suggested by the learned public prosecutor that section 182 gives the.....
Judgment:

Venkatasubba Rao, J.

1. This is an appeal by the Public Prosecutor against an order of acquittal made in the following circumstances : The accused-respondent was directed under Section 182 of the Madras Dt. Municipalities Act, 1920, by the Chairman of the Salem Municipal Council to remove an encroachment, it having been alleged that a compound wall built by the accused in front of his house encroached upon a public street. The accused refused to comply with the order on the ground that there was no encroachment and thereupon lie was prosecuted under Section 313 by the Municipal Council for having failed to comply with the requisition lawfully made in pursuance of the provisions of the Act. The accused was tried by a Bench of Magistrates and they found that the wall was not built upon a part of the public street, that the portion occupied by the wall never formed a part of the street and that therefore there was no encroachment. On this finding of fact the order of acquittal was clearly justified. It is, however, faintly suggested by the learned Public Prosecutor that Section 182 gives the Municipal Council power of compulsory acquisition, that is to say, that although the wall in question was not built upon any part of a public street still the Municipality could call upon the accused to remove the wall and on his failing to do so get him convicted and that the relief to which the accused would be entitled is compensation mentioned in the section.

2. Section 182, so far as it is relevant for the present purpose, is as follows:

1, The Chairman may by notice require the owner of any premises to remove or alter any projection, encroachment or obstruction situated against, in front of such premises and in or over any street.

2. If the owner...of the premises proves hat any such projection, encroachment or obstruction has existed for a period sufficient under the Law of Limitation to give any person a prescriptive title thereto or...the Municipal Council shall make reasonable compensation to every person who suffers damage by the removal or alteration of the same.

3. It is quite obvious that the object of the section is not to empower the Municipality to compulsorily acquire a private property but its scope is limited to authorising the Municipal body in public interest to cause obstructions and encroachments to be removed.

4. I have no hesitation in rejecting the argument as utterly untenable. Indeed, the learned Public Prosecutor was quite conscious of the weakness of his contention, and merely desired to have a ruling upon the point.

5. There is however another portion of the judgment of the Magistrates which calls for more serious consideration. I have said that they gave a finding that no part of the wall was built upon any portion of the public street. The Magistrates, however, proceeded to say that if the wall constituted an encroachment, the accused has been in possession of that part of the street which was encroached upon for over the statutory period and therefore the action of the Municipality was not justified.

6. In this the Magistrates were clearly wrong. The decision is in the teeth of the express words of the section which enacts that if the owner succeeds in proving that the encroachment has existed for a period sufficient under the Law of Limitation to give him a prescriptive title thereto, he is all the same bound to comply with that order but in that event he will be entitled to a reasonable compensation from the Municipal Council.

7. Mr. T M. Krishnaswami Aiyar the learned Vakil for the accused relied upon the Chairman, Municipal Council, Srirangam v. Subba Pandithar (1912) 38 Mad. 456 The learned Judge held in it that if the owner acquired title by adverse possession to the site occupied by the encroachment or obstruction, the whole of such space ceases to be a street and what was originally an encroachment can no longer be described as such and that therefore the Municipality will not be justified in requiring its removal. But it must be remembered that this is a decision on Section 168 of the repealed Act IV of 1884. It runs thus:

1. The Municipal Council may cause any projection, encroachment or obstruction made against or in front of any building or land in any public street to be removed or altered as they think fit.

2. The Municipal Council shall give notice of such intended removal or alteration to the owner or occupier of the building or land against or in front of which such projection, encroachment or obstruction has been made thirty days before such alteration or removal is begun.

3. If such projection, encroachment or obstruction shall have been lawfully made the Municipal Council shall make reasonable compensation to every person who suffers damage by such removal or alteration.

8. Whatever doubts may be entertained in regard to the old section they have been removed by the very clear and express language of the section in the new Act. For the purpose of the present section what is once an encroachment or an obstruction always remains so. If it is proved that the portion on which the encroachment exists was once a street the right of the Municipality follows as a necessary result.

9. I am therefore of the opinion that The Chairman, Municipal Council, Srirangam v. Subba Pandithar (1912) 38 Mad. 456 is not an authority that bears on the present question. The learned Public Prosecutor relied upon Basaveswara Swami v. The Bellary Municipal Council (1912) 38 Mad. 6 as establishing the proposition the very reverse of what was held in The Chairman, Municipal Council, Srirangam v. Subba Pandithar (1912) 38 Mad. 456. Sadasiva Aiyar, J., was a party to both the decisions and though in the later judgment he was at pains to reconcile it with his earlier judgment, it seems to me that the cases are irreconcilable.

10. In Basaveswara Swami v. The Bellary Municipal Council (1912) 38 Mad. 6 the question arose with reference to a projection overhanging a street. In the later case, The Chairman, Municipal Council, Srirangam v. Subba Pandithar (1912) 38 Mad. 456, the projection rested on the soil of the street itself. In either case by adverse possession the title of the possessor becomes complete. When the projection overhangs the street, he acquires title to the space occupied by the projection. Where the projection on the other hand rests upon the soil, he aoquires title to the site on which the obstruction stands.

11. Corbett v. Hill (1870) 9 Eq. 671 is a useful and instructive case. The plaintiff and the defendants in it were owners of two contiguous houses. One of the first floor rooms in the plaintiff's house projected over the ground site of the defendant's house. The defendant proceeded to erect a building over the said room belonging to the plaintiff and protruding over the site of the defendant's house.

12. The question was whether the space over the projecting room belonged to the plaintiff or the defendant. The learned Vice-Chancellor, Sir W.M. James, held that it belonged to the defendant. He says that the ordinary rule of law is that whoever has got the solum - whoever has got the site - is the owner of everything up to the sky and down to the centre of the earth. But that presumption of law is rebutted by the fact that other adjoining tenements protrude themselves over the site. Then the question arises : Is the owner of the soil deprived of the entire right including the right upwards and downwards as is defined horizontally by a section of the protrusion ; or is he deprived of that portion only as is included between the ceiling of the room at the top and the floor at the bottom?

13. The protrusion, the learned Vice-Chancellor answers, does not carry with it anything above it or anything below. The owner of the site remains the owner of everything else, that is the vertical column of air, in other words, the space above and below the protrusion or the projection overhanging the site.

14. Applying this principle to the facts of Basaveswara Swami v. Bellary Municipal Council (1912) 38 Mad. 6 the owner acquired by adverse possession title to the space covered by the projection and to that extent the street lost its character of a street, and similarly in The Chairman, Municipal Council, Srirangam v. Subba Pandithar (1912) 38 Mad. 456 the owner acquired title to the site on which the projection rested and that part of the site ceased to be a street.

15. In the earlier case, Basaveswara Swami v. Bellary Municipal Council (1912) 38 Mad. 6 , the learned Judges, Sundara Aiyar and Sadasiva Aiyar, JJ., decided in favour of the Municipality; and in the latter case, The Chairman, Municipal Council, Srirangam v. Subba Pandithar (1912) 38 Mad. 456 the learned Judges, Sadasiva Aiyar and Tyabji, JJ., decided against the Municipality. With all respect it seems to me that the decisions in the two cases are at variance with each other.

16. But for my present purpose it is unnecessary to pursue this point. We are now governed by an altogether new Act and the words in the section in question leave no room for doubt. I therefore hold that the decision of the Bench of Magistrates on the second question is wrong.

17. The order of acquittal was however rightly passed and in the result the appeal fails.

18. I would like to add that it is extremely undesirable that cases of this description involving difficult questions of fact or of law should be directed to be tried by a Bench of Honorary Magistrates. They cannot ordinarily be expected to deal satisfactorily with the questions that are involved in such cases and I have had not a little amount of difficulty in understanding the judgment in the present case.


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