MOIDI BEARY Vs. PRESIDENT, TALUK BOARD

JUDGEMENT

(1.) The petitioner in this case was convicted of an offence Under Section 159 (1) read with Section 207 (1c), Madras Local Boards Amendment Act. He was served with a notice to remove a tiled structure comprising a shop and a dwelling house which he had built on road poramboke vested in Taluk Board land in S. No. 65A/ 1A-1 in mile 1/5 of the Ullal village on 7 February 1931. The only question in this case is whether having been charged and acquitted in respect of the same encroachment on 21 July 1930 he can again be prosecuted and convicted. The lower Court has relied on the ruling in Narayana Ayyar V/s. Rakupayal [1927] M.W.N. 645. That is a decision of a single Judge Wallace, J., but it appears to be quite indistinguishable from the present case. As stated there Ramanujachariar V/s. Kailasam Ayyar A.I.R. 1925 Mad. 1067, a decision of a single Judge, has not been followed in Ramachandra Chetti V/s. Chairman, Municipal Council, Salem A.I.R. 1926 Mad. 763, a Bench decision. It has been clearly laid down in the latter case that the offence consists in the failure to obey a requisition issued by the competent authority. No doubt there are other points in that case which distinguish that case from the present case. The precise qnestion there was whether, when a notice had been issued and not complied with and a second notice was issued and the prosecution was instituted within three months of the second notice but more than three months after the first, it was barred Under Section 347, Madras District Municipalities Act. The learned Judges observed: If a prosecution had been instituted on the first requisition and had failed or not been pressed, other considerations might come in but that question does not arise here.

(2.) The decision in In re Subramania Ayyar A.I.R. 1931 Mad. 181 quoted for the petitioner does not apply, for the two notices in that case were issued on the same date and the Court held that the conviction was unsustainable because both the notices being issued on the same date were really the same notice. In his commentary on the Local Boards Act C.V. Naidu at p 447, says: If a person had been acquitted of the offence of encroachment by holding that there was no encroachment he cannot be prosecuted once again by giving a fresh notice on the same facts. In the absence of evidence distinguishing the facts before the Court in this case from those dealt with in the previous case, the conviction was illegal : Crown V/s. Dina Nath [1904] 63 P.L.R. 1904.

(3.) That decision is not available in the Court library and it is presumably that of a commissioner. It has been pointed out correctly for the petitioner that Ramachandra Chetti v. Chairman, Municipal Council, Salem A.I.R. 1926 Mad. 763, did not explicitly overrule all the remarks in Ramanujachariar V/s. Kailasam Ayyar A.I.R. 1925 Mad. 1067 but merely dealt with that part of the judgment which held that the bar of limitation could not be avoided by issuing a second notice, Srinivasa Ayyangar, J., having held that there was a bar of limitation. The remarks relied on before me are where he says that apart from this there was another objection to the maintainability of the prosecution, viz., that there had been an acquittal by a competent Court in respect of the offence charged. He says: Taking a common sense view of the provisions of Section 159, it seems to be clear that the real offence in such eases is the wrongful encroachment that is committed by the person.