A K KANNAYYA CHETTY Vs. PRESIDENT, UNION BOARD

JUDGEMENT

(1.) The petitioners in these cases are owners or occupiers of houses in the southern row of a street called South Car Street in Tirukoilur Union. They and some other house owners who have not applied to this Court were convicted by the Stationary 2nd Class Magistrate, Tirukoilur, which conviction was affirmed on appeal to the Sub-divisional Magistrate, Tirukoilur, under Section 207 (1) (a) of the Local Boards Act for failure to remove encroachments into the street in front of their several premises consisting of thatched roofs supported on posts planted in the ground. The common defence of all the petitioners was that the roofs were not encroachments, because the strip of land occupied by them which is at the southern margin of the road was not part of the road but Government land under which there was a water channel called Theppakulam Channel covered by stone slabs laid across the top. This defence was rejected by both the Courts below who found that though the Theppakulam Channel which has been out of use for several years and the stone coverings, to it belong to Government, the surface is part of the "road" according to the definition in the Local Boards Act and vests in the Union Board. It was proved that the site of the channel was surveyed as part of the road in 1920 to which no objection was then taken by any of the adjacent house owners, and that in 1915, when proceedings under the Land Encroachment Act for levying penal assessment against the petitioner in Cr. Rev. Case No. 932 were taken, the Collector while excusing the levy ordered by the Tahsildar and permitting the continuance of the encroaching roof so long as the owner did not interfere with the repairs of the channel made it quite clear, which that petitioner admitted, that the site belonged to Government liable to assessment under the Act. On these findings the petitioners were convicted and fined Rs. 25 each.

(2.) In this Court the advocate for the petitioners has advanced the argument that the definition of "public road" in the Local Boards Act, 1920, is different from that of "Road," "Public road" in Act VI of 1900 which itself amended the original definition of "Street" and "Public street" in the Act of 1884. It was contended that the result of this change of definition is that though the site of the Theppakulam Channel with its covering may have been part of the road or street according to the older definition, yet the present definition excludes it from the road, as it has become "the adjacent property" belonging to Government. This is the main question in these cases.

(3.) The present Local Boards Act came into force on 1 April, 1921, till when the former Act of 1884 as amended in 1900 was in force. According to Section 235 of the Act of 1920 all property, rights, and interests of whatever kind owned by or vested in a Local Board as constituted under the old Act, passed to the corresponding Local Board constituted under the, new Act. If, therefore, the site of the Theppakulam Channel could be shown to have formed part of a public road under the old Act, it would necessarily form part of the same road under the new Act unless indeed there were something in the new Act (e.g., the definition of public road) which necessarily excludes it therefrom in spite of Section 235. A comparison of the old definition of "road" and "street" with the new definition of "public road" does not support the petitioner's contention. "Road" in the Act of 1884 as amended in 1900 includes any road, street, square, court, alley or passage, whether a thoroughfare or not, over which the public has a right of way, together with the (Trains on either side and with the land, whether covered or not by any pavement, verandah or other erection, which lies on either side of the roadway up to the boundaries of the adjacent property, whether that property be private property or property reserved by Government for other purposes, and also includes the roadway over any public bridge or causeway.