KUMARAN Vs. PANCHAYAT BOARD BADAGARA

JUDGEMENT

(1.) The petitioner was convicted under S.79(c) and 115(1) of the Madras Village Panchayats Act X of 1950 and was sentenced to pay a fine of Rs. 5/-. The charge against him was that he removed earth from a drain adjoining a public pathway known as Peruvattom Thazha foot path in ward No. 14 of Badagara Panchayat. He denied the removal of the earth and further contended that even if earth was removed, it was done in connection with a bona fide agricultural operation and that the act did not constitute an offence. The learned Magistrate found that he had actually removed the earth as alleged by the prosecution, that it was done as a bona fide agricultural operation but that he was nevertheless guilty, as the opinion of the Inspector of Panchayats that it was so had not been obtained.

(2.) Shri P. Govinda Menon, learned counsel for the petitioner did not question the finding of fact regarding the removal of the earth. However, it was contended that in view of the finding that the removal was in connection with a bona fide agricultural operation, the petitioner should not have been convicted. The argument advanced was that it was incumbent on the prosecution to prove that in the opinion of the Inspector of Panchayats the removal of the earth was not a bona fide agricultural operation. Reference was made to S.221 of the Madras District Municipalities Act which authorises the executive authority to require a person to desist from dangerous quarrying and also to S.157 of the Madras District Boards Act which provides that no person should work a quarry or remove stone, earth or other material from any place within 20 yards of a public road or other immovable property belonging to the District Board without obtaining a licence from the District Board permitting him to do so. It was pointed out that there was no such provision in the Madras Village Panchayat Act enjoining the obtaining of prior permission or sanction to do such quarrying. Though there is no such provision in the Village Panchayat Act, there is a provision in the rules for obtaining a licence from the Panchayat and reference will be made to this later. This case has to be decided on a construction of the relevant provisions of the Village Panchayats Act. S.79(c) provides:

(3.) The argument was that the prosecution should prove that earth was not merely removed but that the removal was not for bona fide purpose in the opinion of the Inspector of Panchayats. Reliance was placed on the proposition that in all criminal trials the onus was on the prosecution, not only to establish the guilt of the accused but also to show that conditions do not exist which would entitle the accused to any protection under the law. I am unable to accept the latter part of the proposition. The onus with regard to the proviso to S.79(c) is on the accused and it is for him to establish that the proviso is attracted to the case. The proviso offers a special defence to the case and it is for him to show that it is applicable and that prosecution must therefore fail. This view is supported by the decision of Mookerjee, J. in Nishikanta Ghosh and another v. The Corporation of Calcutta (AIR 1953 Calcutta 401). A similar view was taken by the Allahabad High Court in Rameshwar Das v. Emperor (AIR 1936 Allahabad 86). It was not proved by the accused that the proviso to S.79(c) was applicable to this case.