P C KANDASWAMY PILLAI Vs. MUNICIPAL PROSECUTOR

JUDGEMENT

(1.) The petitioner constructed a window, the panels of which when swung open passed six inches beyond the road boundary. He was therefore called upon by the executive authority of the Palghat Municipality under Section 181(2) of the District Municipalities Act to alter the window so that no part of it when open projected over the street. As he did not do so, he has been prosecuted and convicted and ordered to pay a fine of Re. 1.

(2.) The surveyor reported that when the window was fastened back it did not project over the road, nor did it when it was shut. It was only in the process of opening and shutting that the panels of the window swung over a small area of the street. The question is (1) whether that swinging over the road for a moment or two would . amount to an encroachment and (2) whether, more specifically, it came within the mischief of Section 181 (2) of the Act. By an encroachment is generally understood something that hangs more or less permanently over the road and not something which momentarily passes over some portion of the road. It also appears from the wording of Section 181 that what is prohibited there is the erecting without licence of a window, door, gate, or bar that, when in its normal open position, projects over the street. The position of the window in question when it is open is parallel to or almost parallel to the wall, and so would appear not to be hit by this section, which deals with windows etc. which in their normal open position project over the road.

(3.) In allowing this appeal and ordering the fine to be refunded, I leave open the question whether, if it should be subsequently found that the window in question does project over the road longer than is necessary for the opening and shutting of the window, the petitioner would contravene the provisions of the Act.