State by Public Prosecutor vs Sivaprakasam

Paul, J.—This appeal has been preferred by the State, represented by the learned Public Prosecutor against the order of the learned Chief Judicial Magistrate of Tirunelveli setting aside the conviction of the respondent-accused by the learned Judicial Second Class Magistrate, Tuticorin, of an offence under S. 199 read with S. 317(c) of the Tamil Nadu District Municipalities Act and acquitting him of that offence.

The respondent-accused was a tenant under one, Subbiah of premises No. 144, Ettayapuram Road in Tuticorin. There appears to have been dispute between Subbiah and his tenant (the accused) and Subbiah had sent a notice through his advocate to the accused complaining amongst other things that the accused was attempting to put up new constructions without the consent of the landlord and without applying for licence to the Municipality. A copy of that notice, Ex.P-1 was sent to the Municipality. P.W.1, the Building Inspector, on receipt of Ex.P-1 visited the premises, Door No. 144, Ettayapuram Road, on 3rd October 1973 and found new constructions being carried on. He prepared his inspection report, Ex.P-2 and also drew a rough sketch in it of the new constructions and submitted Ex.P-2 to the Commissioner. A notice, dated 16th October 1973 was issued to the owner of the property as well as to the accused and the notice, the office copy of which is Ex.P-3, under Ss. 199 Nadu District Municipalities Act was served on the accused on 23rd November 1973 through P.W.2. The last Grade servant under P.W.1. On 6th December 1973, P.W.1 again visited the place to and out whether the directions contained in the notice had been obeyed and found that the work started by the accused had been completed. He thereupon gave a report, Ex.P-4 to the Commissioner and the Commissioner sanctioned prosecution of the accused. The accused examined himself as D.W.1 and stated that he became a tenant of Door No. 144, Ettayapuram Road under one Singaravel Nadar, but subsequently the property was sold to one Arumugaswamy Nadar and later, his son Subbiah inherited it as a trust property and he, the accused, was carrying on a business in that building. He asserted that he merely carried out certain repairs and did not put up any new constructions. The trial court has accepted the testimony of P.W.I, the building Inspector, who visited the place on 3rd October 1973 and submitted an inspection report Ex.P-2 and also a plan. The trial court found that the notice Ex.P-3 has been served on the accused on 23rd November 1973 as proved by the testimony of P.W.2 who served that notice and the accused did not comply with the instructions in that notice and even failed to send a reply till 27th December 1973. The trial court therefore, found that the prosecution bad proved its case beyond reasonable doubt. The learned Chief Judicial Magistrate has accepted the case of the prosecution and has held that the appellant had put up new additional constructions in that door number as alleged by the prosecution. But, in his view the accused cannot be convicted under S. 199 of the Tamil Nadu District Municipalities Act inasmuch as S. 199 says that construction or re-construction of a building shall not be taken unless and the executive authority has granted permission for the execution of the work and violation of that provision is rendered punishable under S. 317 of the said Act and a close reading of S. 317 shows that only the owner of the building which was put up without such permission can be convicted and as the appellant is not the owner of the building, he cannot be convicted for the constructions put up by him. It was in this view that be set aside the conviction of the accused and acquitted him.

I am afraid the learned Chief Judicial Magistrate has gene off at a tangent. The facts as found by the trial court are that the accused is a tenant occupying Door No. 144, Ettayapuram Road, Tuticorin, which premises belongs to Subbiah and the accused began to put up new constructions in those premises and to make alterations to the existing structure. Thereupon, Subbiah, the landlord protested against the putting up of such constructions and sent a notice through an Advocate and copy of that notice was also sent to the Municipality. Thereupon, P.W.I, the Building Inspector, on receipt of that notice Ex.P.l, inspected the site and found additional constructions as being put up and made ''an inspection report Ex. P.2 and sent it to the commissioner who thereupon directed the issue of a notice under S. 216 of Act and accordingly the notice Ex. P-3 was issued both to Subbiah as well as to the accused and it was served on the accused by P.W.2. But, the Accused did not obey the directions contained in that notice as found by P.W.1 when he subsequently inspected the site and found that the new constructions had been completed. The learned Magistrate, on those facts, clearly found that an offence punishable under S. 317(c) of the Tamil Nadu District Municipalities Act has been committed and convicted the accused,

S. 317(c) is in these words:

If the construction or re-construction of any building or well is carried on or completed in contravention of any lawful order or in breach of any provision contained in this Act or in any rule or by law made hereunder or of any direction or requisition lawfully given or made, or

If any alternations or additions require by any notice issued under S. 208 or S. 215 are not duly made, or

If any person to whom a direction is given by the Executive Authority to alter or demolish a building or well under S. 216 fails to obey such direction.

the owner of the building or well or the said person as the case may be shall be liable as conviction to a fine...

It might be noted that the trial court bad not convicted the accused of an offence under S. 317(a) which states ''''if the construction or re-construction of any building or well is commenced without the permission of the Executive Authority". S. 216 states:

(1) If the executive authority is satisfied, (1) that the construction or reconstruction of any building or well-\\

(a) has been commenced without obtaining the permission of the executive authority or where an appeal or reference has been made to the council in contravention of any order passed by the council, or

(b) is being carried on, or has been completed otherwise than in accordance, with the plans at particulars on which such permission or order was based, or

(c) is being carried on, or has been completed la breach of any of the provisions of this Act or of any rule or by-law made under this Act or of any direction or requisition lawfully given or made under this As or such rules or by-laws, or

(ii) that any alterations required by any notice :issued under S. 208 have not been duly made, or

(iii) that any alteration of or addition to any building or any other work made or done for any purpose, in, to or upon any building, has been commenced or is being carried on or has been completed in breach of S. 215, he may make provisional order requiring the owner or the builder to demolish the work done or so much of it, as, in the opinion, of the executive authority, has been unlawfully executed or to make such alterations as may in the opinion of the executive authority be necessary to bring the work into conformity with the Act, By-laws, Rules, directions or requisition as aforesaid, or with the plans and particulars on which such permission or order was based; and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building, or well.

(g) The executive authority shall serve a copy of the provisional order made under sub-S. (l) on the owner of the building or well together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed.

(3) If the owner fails to show cause to the satisfaction of the executive authority the executive authority may confirm the order with any modification he may think fit to make and such order shall then be binding on the owner.

It might be noted that the notice, Ex. P-3, was served both on Subbiah, the owner of the premises as well as on the accused as the builder of the additional constructions. The accused did not obey the directions given in that notice and hence the Magistrate has convicted him under S. 317(c). S. 317(c) refers to any person to whom any direction is given under S. 216. It is not restricted to the owner of the building. Therefore, the learned Chief Judicial Magistrate went wrong in saying that the accused, not being the owner of the building could not be convicted for the additional constructions put up by him. Therefore, this appeal is allowed and the order of the learned Chief Judicial Magistrate is set aside and the order of the learned Judicial Second Class Magistrate of Tuticorin is restored and the appellant is convicted of on offence punishable under S. 317(c) of the Tamil Nadu District Municipalities Act and sentenced to pay a fine of Rs. 25/- (Rupees twenty-five only) in default to undergo simple imprisonment for three weeks, The fine has already been paid.

It might to noted that I am only concerned whether an offence under S. 317(c) of the Tamil Nadu District Municipalities Act has been committed by the accused or not and any observation which I have made above, or any finding which I have given herein will not be used to the prejudice of the accused in the civil suit which has been filed against him by his landlord.