HEALTH INSPECTOR SHERTHALAI MUNICIPAL COUNCIL Vs. ANANDA NAIKKEN

JUDGEMENT

(1.) THIS appeal is filed by the Health Inspector of Shertalai Municipality against the order of the Additional First Class Magistrate,Shertalai acquitting the respondent who had been prosecuted for the offence of stocking laterite stones in the poromboke land vested in the municipality without the permission of the municipal council.P.W.1 the Health Inspector has produced the Government Order A3.15046/57/RD dated 17 -10 -57 whereby the land lying on either side of the Alleppey - Shertalai canal between Muttom lake and St.Mary's High School has been transferred to,the municipal council.S.406 of the Kerala Municipalities Act - - Act XIV of 1961(hereinafter referred to as the Act)provides that: "No person shall,without authority in that behalf,remove earth,sand,or other material or deposit any matter or make any encroachment from,in or on any land vested in the municipal council,or river,estuary,canal,backwater or water course(not being private property)or in any way obstruct the same." S.363(3)says

(2.) IN the complaint the sections mentioned were S.355 read with S.213(3)and S.363 of the Act.As pointed out by the Magistrate,S.213(3)refers to the.power of the municipality to lease road sides and street margins for occupation and the offence is failure to remove the encroachment.S.363(10)refers to failure to produce the licence on request.The learned Magistrate has stated that failure to remove the encroachment can arise only if a notice to remove the encroachment had been given to the accused as provided in S.212(1 ).No such notice had been given in this case.As for S.363(10)failure to produce the licence on demand there being no case that the accused was a grantee of any licence or permission no question of the accused contravening S.363(10)would arise.The learned Magistrate,therefore,found that the accused is not guilty of the offence under S.355 read with S.213(3)and S.363(10)of the Act.This is conceded both in the court below as well as here by the learned counsel for the appellant.He would say that the mention of S.213(3)and S.363 in the complaint is an obvious mistake and the facts disclosed would amount to contravention of the provisions of S.406 of the Act.By that section without authority,that is,without permission from the municipal council no person can deposit any matter on any land vested in the municipal council.S.355 says whoever contravenes any provision of any of the sections shall on conviction be punished with fine which may extend to the amount mentioned in that behalf in the fourth column of the fifth schedule to the Act.The penalty fixed for unlawful deposit of any matter is twenty rupees.

(3.) LEARNED counsel for the municipality contended before the learned Magistrate that the accused could be found guilty under S.406 even though the specific section was not mentioned in the complaint.Reference was made to S.246 of the Criminal Procedure Code.S.246 says: