HEALTH INSEPCTOR BADAGARA MUNICIPALITY Vs. KELAPPAN

JUDGEMENT

(1.) The Health Inspector of the Badagara Municipality has filed this appeal against the judgment of the District Magistrate, Kozhikode acquitting the respondent (accused) who had been convicted by the Sub Magistrate of Badagara for an offence under S.355(1)(c) read with S.250 of the Kerala Municipalities Act - Act 14 of 1961 (hereinafter referred to as the Act).

(2.) On 21-5-62 the Municipal Commissioner served the accused with a notice requiring him within 7 days of the receipt of notice to demolish his building bearing Municipal door No. 6/210 as it was in a dilapidated and ruinous condition. Again on 22-6-62 a second notice was served giving seven days' time to execute the work. Service of notice is admitted by the accused, but he pleaded that he could not comply with the notice as the tenants were in actual occupation of the building. The accused having failed to comply with the notice the complaint was filed on 30-1-1963. S.355(1)(c) penalises the failure to comply with the direction given to a person or any requisition lawfully made upon a person under or in pursuance of the provisions of any of the sections or rules under the Act. On the evidence the learned Magistrate found the accused guilty and convicted him and sentenced him to pay a fine of Rs. 50/- in default to undergo simple imprisonment for one month.

(3.) On appeal the District Magistrate acquitted the accused on the ground that the order and direction were not lawful; and secondly that even if it were lawful the accused could not have complied with it as tenants were in occupation. Regarding the second point if the occupier or tenant of a building had prevented the owner from complying with the notice issued by the municipality there is provision under S.375 of the Act for the owner to report the fact to the commissioner and the commissioner can give an order requiring the said occupier to permit the owner within 8 days from the date of service to execute all such work as may be necessary and for the period during which he is prevented as aforesaid, be exempt from any fine or penalty to which he might otherwise have become liable by reason of default in executing such works. The accused has no case that he had actually attempted to comply with the notice and the occupiers prevented him and that he had sent intimation of this fact to the municipality as required under the provisions of S.375. So this plea is of no avail.