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In Re: Valivela Venkata Sivayya - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in100Ind.Cas.375
AppellantIn Re: Valivela Venkata Sivayya
Excerpt:
madras district municipalities act (v of 1920), sections 3(24), 317(a), (c) - re--construction, definition of--conviction under section 317(a)--appeal--conviction, whether can be altered to one under section 317(c). - .....municipal council, palacole, and was sentenced to pay a fine of rs. 50. in appeal, the learned joint magistrate altered the conviction to one under section 317(c) of the act, which renders punishable the carrying on or completion of a construction in contravention of any lawful order, or in breach of any provision contained in the act or of any rule or bye law made thereunder, or of any direction or requisition lawfully given or made, and reduced the fine to rs. 26.2. it is now argued that the learned joint magistrate has failed to apply the definition of 're-construction' which is contained in section 3(24) of the act. in cases where reconstruction is partial only, that definition requires that the 're-erection' to constitute 're-construction' should be done after more than one-half.....
Judgment:
ORDER

Curgenven, J.

1. The petitioner was convicted by the Stationary Sub Magistrate of Narasapur of an offence under Section 317(a) of the District Municipalities Act, Madras Act V of 1920, namely, with commencing the re-construction of a building without the permission of the Chairman, Municipal Council, Palacole, and was sentenced to pay a fine of Rs. 50. In appeal, the learned Joint Magistrate altered the conviction to one under Section 317(c) of the Act, which renders punishable the carrying on or completion of a construction in contravention of any lawful order, or in breach of any provision contained in the Act or of any rule or bye law made thereunder, or of any direction or requisition lawfully given or made, and reduced the fine to Rs. 26.

2. It is now argued that the learned Joint Magistrate has failed to apply the definition of 're-construction' which is contained in Section 3(24) of the Act. In cases where reconstruction is partial only, that definition requires that the 're-erection' to constitute 're-construction' should be done after more than one-half of the cubical contents of the building have been taken down or burnt down. The Joint Magistrate applies what he calls the test of common sense, namely, whether so many walls were re-built and such material alterations made that it can be reasonably said that there was a re-construction of the house. This method of applying the words of the Statute has not been supported before me and I think it is plainly untenable. It should have been found whether the test furnished by the definition had been satisfied in order to find whether a re-construction within the terms of the Act had been undertaken. The Joint Magistrate goes on to remark that at the date fixed for the offence in the charge, namely, 17th June, 1925, it was alleged that part of the re-construction had already been done, so that there was no commencement on that date, and, as I understand his judgment, he accepts this view and a logical conclusion from it was that no conviction under Section 317(a) could be sustained. Accordingly he altered the finding to one under Section 317(c), with which the accused was not charged. It appears to me that the offence defined in Section 317(c) is of quite a different character and that the essence of it is that after re-construction has been commenced an order is passed to prohibit its carrying on or completion except upon certain terms and that that order is disobeyed. The facts of the present case do not substantiate an offence of that kind, and I do not think that the petitioner should have been convicted of it in the circumstances. I must, therefore, set aside the finding and sentence imposed by the Appellate Court.

3. In view of the length of time which has elapsed since the act forming the subject-matter of the charge was committed, of the somewhat technical character of the alleged offence and of the doubt which still exists whether a prosecution under Section 317(a) would be successful, I think there are sufficient grounds for not ordering a further trial.

4. In these circumstances, the accused is acquitted and the fine, if paid, will be refunded.


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