Veerakesavan vs Anchi Chettiar

K.N. Mudaliyar, J.—The petitioner is the accused who is the Commissioner of Gudiyattam Municipality. The complainant before the court of the Sub-Magistrate, Gudiyattam is the respondent herein (Anchi Chettiar). The essence of the complaint against the petitioner is that the petitioner had willfully ordered the demolition of the building built and enjoyed by the respondent on a vacant site taken by him on lease from the Gudiyattam Municipality with certain ulterior motive and intent to cause wrongful loss to the respondent. According to the complainant the Commissioner has no power to do that.

Four prosecution witnesses appear to have been examined and at that stage a petition was filed on behalf of the petitioner (first accused) that the proceedings against him were incompetent in law on the ground that there has been no sanction obtained against him by the complainant under S. 197 Crl. P.C. The learned counsel for the petitioner did not choose to rely on S. 197 Crl. P.C., before the proceedings in this conrt, and rightly tee.

The learned counsel relied on S. 353. A of the Madras District Municipalities Act (Act v. of 1920) which runs as follows);

When the Chairman, any councilor or the executive authority is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognisance of such offence except with the previous sanction of the State Government.

Mr. Narayanamoorthy, learned counsel for the petitioner, argued that in view of the preceding events beginning from the resolution of the Municipal Council upto the day of demolition of the shed of the respondent, the petitioner was at least acting or purporting to act in the discharge of his official duty. The resolution of the Municipal Council authorized the petitioner (Commissioner of the Municipality) to take action against the defaulter, namely, the respondent herein. Even on 29th September 1970, the Municipal Commissioner issued a notice Ex. D. 1 demanding for payment before 10th October 1973 of the enhanced lease amount in regard to the premises occupied by the respondent. Evidently the respondent did not pay the enhanced lease amount. The petitioner issued another notice on 19th November 1970 (Ex. P. 4, and on 23rd November 1970 all on a sudden at about 12 noon, accused 2 to 4 purporting to act under the orders of the first accused (the petitioner) turned up and pulled down the structure causing loss of about Rs. 500. The details of the demolition are found in the allegations mentioned in the complaint and in the evidence of P.W. 1 also. In the notice issued, on 19th November 1970, the Municipal Commissioner (petitioner) seems to invoke Ss. 341 and 344 of the Madras District Municipalities Act, for exercise of his power. But the said notice dated 19th November 1970 demanded payment of arrears by 20th November 1970. There was no notice for removal of the structure on the leased land. In my view, the provisions of S. 341 of the Act are totally inapplicable. Even S. 344 cannot be called into aid by the petitioner, for the said location places rents for lands and buildings demised by the Municipal Council outside the ambit of S. 344. In my view S. 344 of the Act also is totally inapplicable. Any powers vested in the petitioner within the ambit of Schedule IV also cannot be called into aid for the exercise of any power for demolishing the shed of the respondent. But the learned counsel sited authorities, the first of which is the one reposted in Matajog Debey and another v. H.C. Bhari 1956 M. W. N. (Cri.) 57 and relied on the following passage at page 61:

Where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carried with it the power of doing all such acts or employing such means as are reasonably necessary for such execution. If in the exercise of the power or the performance of the official duty, improper or unlawful obstruction or resistance is encountered, there must be the right to use reasonable means to remove the obstruction or overcome the resistance. This accords with commonsense and does not seem contrary to any principle of law. The true position is neatly stated thus in Broom''s Legal Maxims, 10th Edn. at page 312: ''It is a rule that when the law commands a thing to be done, It authorises the performance of whatever may be necessary for executing its command.''

The learned counsel emphasised that the petitioner had believed that he had a right to demolish the shed and although his belief might be mistaken, but surely it cannot be said that his act was necessarily male fide and so entirely divorced from or unconnected with the discharge of his duty that his act or direction given to the other co-accused is an independent set maliciously done or perpetrated. He could reasonably claim that what he did was in virtue of his official duty, whether the claim is found ultimately to be well founded or not. To begin with I am unable to discover any power vested in the petitioner for performing his duty in the manner in which he has done by demolishing a shed owned by a lessee of the Municipal Council in the event of default of payment of the lease amount. A careful analysis of the relevant sections of the District Municipalities Act, namely, Ss. 180, 180-A, 181 and 183 read with Ss. 341, 344 and Schedule IV of the Act shows that these sections disclose a careful and guarded analysis of the powers vested in the Municipal Council, the Municipal Commissioner (the Executive authority); and the exercise of power by the Municipal authorities including the executive authority is strictly defined and delimited. I am unable to see either from the arguments of the learned counsel for the petitioner or from the records that the shed which had been demolished as a result of the direction given by the Municipal Commissioner is an encroachment, nor has this been claimed to be one by the learned counsel for the petitioner. In the case reported In Matajog Dobey v. Bhari 1956 M. W. N. Cri. 57 there was undoubtedly some power vested In the four persons of the department of income tax Investigation Commission. But here, a scrutiny of the provisions of the Act, shows that they did not vest any power in the petitioner to demolish any structure on the leased land solely on the ground of default in payment of rent for the land demised by the Municipal Council.

The other authority on which learned counsel relied is the one reported in Arulswami v. State of Madras 1967 L. W. Cri. 89. In that case the appellant, the elected President of the Panchayat, drew and cashed a sum of Rs. 4,000 on 11th February, 1959 and did not bring it in the account books of the Panchayat Board. This Court held that no sanction was necessary as the appellant had ceased to hold the office of President when the prosecution was launched. and the reasoning of the learned Judges of the Supreme Court as extracted herein below is:

A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus, a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged can reasonably claim that, what he does, he does in virtue of his office.

Applying this test, I am unable to see how the petitioner can reasonably claim that what he does he does by virtue of his office and there is not even any shadow of power vested in him in regard to the particular manner of punishing the lessee for default in payment of rent, by demolishing the shed. Learned counsel relied on another judgment of the Supreme Court reported In Amrik Singh v. State of Pepsu, 1950 M. W. N. Cri. 94 at page 96 The relevant passage runs as follows:

It is not every offence committed by a public servant that requires sanction for prosecution under S. 197(1) Crl. P.C. nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was in fact a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.

The act complained of by the respondent against the petitioner, in my judgment, is not so integrally connected with his duties attaching to the office as to be inseparable from them when there is a total lack of power In the petitioner drawn from the statute. Mr. C.F. Louis, learned counsel for the respondent argues that there is no power even in a landlord to trespass on the property leased out by the landlord in favor of the tenant and in the event of any default of payment of rent by the lessee, there is no law which vests the power in any landlord to proceed arbitrarily to his own land and destroy the building constructed by his lessee solely for the purpose of punishing the lessee for the default in the payment. Be it noted that the destruction of the thatched shed was certainly not even for the purpose of the distraint and the subsequent auction of the property. The criminal miscellaneous petition is dismissed. The trial of C.C. No. 5057 of 1970 on the file of the court of the Sub Magistrate shall be expedited.