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E. Raghavachariar Vs. President, Union Board - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1926Mad806; 95Ind.Cas.600
AppellantE. Raghavachariar
RespondentPresident, Union Board
Cases ReferredHughes v. Metropolitan Railway Company
Excerpt:
- .....a prescriptive title to the land said to have been encroached upon by him. some time after, the union board passed a resolution directing the issue of notice to the accused to remove the encroachment. this notice, ex. m (2), was accordingly issued on the 25th of june 1923. later on the union board sent a fresh notice, ex. m. (7), dated the 16th of july 1924, for the same purpose ; and as the accused did not comply with the requisition contained in it, proceedings were commenced against him on the 11th of august, 1924.2. on a consideration of the evidence, the taluk magistrate held that the koradu in question was an encroachment on a public road which vested in the union board of tiruvellore and finding the accused guilty of having failed to comply with the notice issued by the union.....
Judgment:
ORDER

1. The accused has been convicted by the Taluk Magistrate of Tiruvellore, under Sections 159(1) and 207(1) of the Madras Local Boards Act (XIV of 1920), for failure to comply with a notice issued to him to remove an encroachment on a public road lying within the limits of the Tiruvallore Union. The encroachment consisted of a mud koradu in front of the accused's house. He first began to raise it early in 1916. Ever since 1918, the accused, the Taluk Board and the Revenue authorities had been in communication with each other regarding the removal of this encroachment. After showing an inclination to accept a temporary patta on payment of a small rent, the accused finally declared that he had acquired a prescriptive title to the land said to have been encroached upon by him. Some time after, the Union Board passed a resolution directing the issue of notice to the accused to remove the encroachment. This notice, Ex. M (2), was accordingly issued on the 25th of June 1923. Later on the Union Board sent a fresh notice, Ex. M. (7), dated the 16th of July 1924, for the same purpose ; and as the accused did not comply with the requisition contained in it, proceedings were commenced against him on the 11th of August, 1924.

2. On a consideration of the evidence, the Taluk Magistrate held that the koradu in question was an encroachment on a public road which vested in the Union Board of Tiruvellore and finding the accused guilty of having failed to comply with the notice issued by the Union President directing its removal 'he convicted him under Section 159(1) read with Section 207(1) of the Local Boards Act and sentenced him to pay a fine of Rs. 30 and, in default, to undergo simple imprisonment for a week.

3. It is argued on behalf of the petitioner that the Sub-Magistrate should have dismissed the complaint on the ground that the prosecution is barred by limitation under Section 223 of the Local Boards Act. Section 223 provides that

No person shall be tried for any offence against the provisions of this Act, or of any rule, or bylaw made under it, unless complaint is made by the police or the President of a Local Board, or by a person expressly authorized in this behalf by the Local Board or its President within three months of the commission of the offence.

4. It is contended that under this section a prosecution should be launched before the expiry of three months after the-commission of the offence, that the proceedings in this case took place long after the expiry of the time to remove the encroachment mentioned in the first notice, and that though the proceedings would be within time if the period of limitation is calculated with reference to the second notice issued by the Board, the conviction is illegal inasmuch as the issue of a second notice with regard to the same offence is prohibited under the Act. In support of this argument reliance is placed on a decision of this Court reported in Ramanujachariar v. Railasam Aiyar A.I.R. 1925 Mad. 1067. In that case, with reference to Section 223, Srinivasa Aiyangar, J. observed that:

It will be against all principle , to hold that, even though a person commits an offence by thus disobeying the terms of the notice he should be deemed to commit a fresh offence every time the local authority chooses to give a fresh notice calling upon him to remove the obstruction.

5. If we have to decide the case before us solely by reference to the principle just referred to, we may have to examine the correctness of this principle; for it does not seem to us to be unreasonable to put forward the view that refusal to remove an encroachment like the one in question may be treated as a continuing offence. But, however that may be, in the view that we take of the proceedings in this case, we think it was competent for the Taluk Board to issue the second notice, Ex. M. (7), dated the 16th of July 1924. and so Section 223 cannot be pleaded as a bar to the prosecution.

6. The notice Ex. M. (2) dated the 25th June 1923 directed the accused to remove the encroachment within 15 days from the date of its receipt. The events that happened subsequent to the issue of this notice are not in dispute. In reply the accused sent Ex. M. (3) in which he denied having encroached upon the Union land and asserting that the koradu in question had been in existence for a hundred years, pointed out that the. question of encroachment had been previously threshed out by the Taluk Board and Revenue officers and that this might not have been brought to the notice of the Union Board and that the wording of the notice imported the false idea that this was a fresh case of encroachment as though made very recently within a period of three months or so, paragraphs 8 and 9 of Ex. M. (3). The Union Board considered this petition at a meeting and referred the question to a sub-committee. The sub-committee reported, on the 29th of September 1923, that the koradu in question was a clear case of encroachment and that action might be taken to remove it. As a result of this recommendation the Union Board issued to the accused Ex. M. (7) the second notice already referred to on the 16th of July 1924.

7. There can be no doubt that it was at the instance of the accused that the Union Board was led to make a fresh enquiry. In our opinion, Ex. M. (3) was in the nature of an invitation to the Union Board to examine the matter afresh and more carefully. Evidently, as is shown by its subsequent conduct, the Union Board accepted this invitation and referred the matter to a sub-committee. In the circumstances of the case we think it is reasonable to hold that when a fresh inquiry was commenced by the Board after the receipt of M. (3) from the accused both parties should be considered to have ignored the first notice and treated it as inoperative. The first notice being thus disregarded, it was certainly competent to the President of the Union Board to issue a fresh notice after the close of the enquiry which was initiated at the suggestion of the accused. The complaint, therefore, filed before the expiry of three months with reference to Ex. M. (7) is certainly not time-barred.

8. In support of the above conclusion reference may be made to the decision of the Bombay High Court in Emperor v. Nadirsha [1905] 29 Bom. 35. In that case, after the issue of a notice to construct a drain and to execute certain works, correspondence began between the Municipal Commissioner of Bombay and the accused, which resulted in the issue of a second notice and a prosecution thereafter. In reply to the argument that the complaint was time-barred having reference to the first notice issued to the accused, the learned Judges, after referring to the correspondence between the accused and the Commissioner, observed that:

Both Dr. Sukhia (i.e. the accused) and the Commissioner entered upon a course of negotiation which had the effect of keeping the notice in abeyance leading Dr. Sukhia to believe that the Municipal Commissioner would not enforce the strict rights arising under it. Both the parties must be regarded after that as having waived the notice and treated it as non-existent and unenforceable.

9. Cases of this description, as pointed out in Emperor v. Nadirsha [1905] 29 Bom. 35, come within what Earl Cairns in Hughes v. Metropolitan Railway Company [1877] 2 A.C. 439, describes as:

the first principle upon which all Courts of Equity proceed, that if parties who have entered Into definite and distinct terms involving certain legal results certain penalties or legal forfeiture afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties.

10. We are, therefore, of opinion that the complaint in the present case is not time-barred.

11. The other points argued before us relate only to questions of fact. It is impossible to say that there is no evidence to support the finding that the koradu in question is an encroachment. We dismiss this Criminal Revision Petition.


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