Moidi Beary vs The President, Taluk Board

Walsh, J.—The petitioner in this case was convicted of an offence u/s 159 (1) read with Section 207 (1c), Madras Local Boards

Amendment Act. He was served with a notice to remove a tiled structure comprising a shop and a dwelling house which he had built on road

poramboke vested in Taluk Board land in S. No. 65A/ 1A-1 in mile 1/5 of the Ullal village on 7th February 1931. The only question in this case is

whether having been charged and acquitted in respect of the same encroachment on 21st July 1930 he can again be prosecuted and convicted.

The lower Court has relied on the ruling in Narayana Ayyar v. Rakupayal [1927] M.W.N. 645. That is a decision of a single Judge Wallace, J.,

but it appears to be quite indistinguishable from the present case. As stated there Ramanujachariar v. Kailasam Ayyar AIR 1925 Mad. 1067, a

decision of a single Judge, has not been followed in Ramachandra Chetti v. Chairman, Municipal Council, Salem AIR 1926 Mad. 763, a Bench

decision. It has been clearly laid down in the latter case that the offence consists in the failure to obey a requisition issued by the competent

authority. No doubt there are other points in that case which distinguish that case from the present case. The precise qnestion there was whether,

when a notice had been issued and not complied with and a second notice was issued and the prosecution was instituted within three months of the

second notice but more than three months after the first, it was barred u/s 347, Madras District Municipalities Act. The learned Judges observed:

If a prosecution had been instituted on the first requisition and had failed or not been pressed, other considerations might come in but that question

does not arise here.

The decision in In re Subramania Ayyar AIR 1931 Mad. 181 quoted for the petitioner does not apply, for the two notices in that case were

issued on the same date and the Court held that the conviction was unsustainable because both the notices being issued on the same date were

really the same notice. In his commentary on the Local Boards Act C.V. Naidu at p 447, says:

If a person had been acquitted of the offence of encroachment by holding that there was no encroachment he cannot be prosecuted once again by

giving a fresh notice on the same facts. In the absence of evidence distinguishing the facts before the Court in this case from those dealt with in the

previous case, the conviction was illegal'''': Crown v. Dina Nath [1904] 63 P.L.R. 1904.

That decision is not available in the Court library and it is presumably that of a commissioner. It has been pointed out correctly for the petitioner

that Ramachandra Chetti v. Chairman, Municipal Council, Salem AIR 1926 Mad. 763, did not explicitly overrule all the remarks in

Ramanujachariar v. Kailasam Ayyar AIR 1925 Mad. 1067 but merely dealt with that part of the judgment which held that the bar of limitation

could not be avoided by issuing a second notice, Srinivasa Ayyangar, J., having held that there was a bar of limitation. The remarks relied on

before me are where he says that apart from this there was another objection to the maintainability of the prosecution, viz., that there had been an

acquittal by a competent Court in respect of the offence charged. He says:

Taking a common sense view of the provisions of Section 159, it seems to be clear that the real offence in such eases is the wrongful encroachment

that is committed by the person.

Then he proceeds to say:

No doubt, the contention that it is merely a failure to comply with the direction contained in the notice can be advanced, having regard to the terms

of Section 207 of the Act.... But, taking the real nature of the acts said to constitute the offence and the terms of all the sections, it is clear that an

offence within the meaning of the Act comes to be committed at any rate on the expiry of the notice by which the person is called upon to remove

the encroachment and fails to do so within the time limited in the notice.

If however he means by these remarks that the real offence is the wrongful encroachment, that is not in accordance with the later decision.

From the point of injustice or inconvenience a good deal can be said on both sides. For petitioner''s view it can be argued that it would be a

hardship that an accused person should be repeatedly brought to Court about an encroachment in regard to which he had been acquitted, but

presumably it would be open to the Court to award compensation for false and vexatious prosecutions. On the other hand petitioner''s contention

might lead to strange conclusions. Suppose A is prosecuted for an encroachment and he succeeds in showing that the encroachment was made by

B and not by himself and B is subsequently forced to vacate it can A then step into B''s encroachment and be free from all criminal proceedings on

the ground that he has once been acquitted of encroaching on the spot. Section 159 gives very wide powers to the Board and even the law of

limitation which would prove possession will not prevail against it; only in that case the Local Board will have to make reasonable compensation.

The essence of the offence has been laid down by the Bench in Ramachandra Chetti v. Chairman,. Municipal Council, Salem AIR 1926 Mad.

763, I am unable to see, adopting this test of what the offence is, how any other conclusion can be reached in the present case, which exactly

resembles that in Narayana Ayyar v. Rakkupayal [1927] M.W.N. 645, where it was held that a person can be prosecuted on a second notice.

There was some argument from the description that it was not certain that the encroachment was the same or at least that the present

encroachment was not larger than the previous one. That however does not appear to have been a ground urged before the lower Court, and I do

not think I should go into that question in revision. The Bench of Magistrates have said somewhat unhappily that the prosecution was ''the second

of its kind for the same offence"" but it is quite clear from their judgment that they do not mean this. I see no reason to interfere in revision. The

conviction is confirmed.

The petition fails and is dismissed.