1. The Municipality of Salem brought a case under Section 313, read with Section 182 of the District Municipalities Act against a certain person for having encroached on a public street. The Second Class Stationary Sub-Magistrate of Salem considered all. the evidence relating to the ownership of this lane and came to the conclusion that it was a public street. He pointed out that even if it were a private street, it would be punishable to disregard an order that the encroachment should be removed; for Section 182 makes no, mention of the word ' public' immediately before the word ' street'. In appeal, the Sub-Divisional First Class Magistrate came to the conclusion that the street was a private one. He did not, consider the second finding of the Stationary Sub-Magistrate that even if it were a private road, the section would apply; but he concluded his judgment by saying:
Since the question of property rights over the lane is in dispute between the Municipality and the appellant, the latter's conviction by the Stationary Sub-Magistrate under Section 313 of the District Municipalities Act does not appear proper.
He accordingly set aside the conviction and acquitted the accused.
2. Although I am entitled to go into the questions of fact in an appeal by the Crown, I should be reluctant to convict the accused if the questions of fact were at all uncertain, especially when the appellate Court came to a finding on the evidence which cannot be said to be altogether unreasonable.
3. The learned Public Prosecutor points out, as the Stationary Sub-Magistrate did, that Section 182 applies to all streets, private as well as public. The corresponding section in the Local Boards Act, Section 159, relates only to public streets, whereas in the District Municipalities Act as well as in the City Municipal Act, encroachments may be ordered to be removed from any street. That this is no accident is evident from the fact that S.. 167 of the old Act, which, like the corresponding provisions of the Local Boards Act, punished disobedience of orders to remove encroachments only on public roads, was amended in the new Act. Section 167 of the old Act, which ran:
No...encroachment in any public street, shall be erected without the written permission of the Municipal Council,
may be contrasted with Section 182 of the present Act.
4. The learned Counsel for the accused does not dispute that Section 182 of the District Municipalities Act applies to private streets as well as to public, but says that his client has all along contended, not that the whole lane belongs to him, but that the alleged encroachment was erected on his own private property. As the accused has been acquitted and there does seem to be a bona fide dispute as to the ownership of the lane in general, and that part of it situated near the accused's house in particular, I do not think that the interests of justice require that the order of acquittal by the Sub-Divisional Magistrate should be interfered with. It is better that the Municipality should establish clearly its rights in a civil suit before taking any further action in a Criminal Court, with respect to this lane.
5. The appeal is dismissed.