NARAYANA AIYAR Vs. YEPKRVSUBRAMANIA CHETTY

JUDGEMENT

(1.) In this criminal revision petition, the Local Fund Overseer of Devakotai applies for the revision of the orders of acquittal passed by the Sub-Magistrate of Tiruvadanai in C. C. Nos. 59 to 61 of 1925. In these cases the respondent was prosecuted under Section 207 (1) (c), Madras Local Boards Act, for failure to obey a notice issued to him to remove encroachments. He received the notice on 16 January 1925 and had 30 days within which to comply with it. On his failure to do so within that time the prosecution cases were instituted on 17 April 1925 so that they were within the three months provided by the Act. As I understand the judgment, the Sub-Magistrate, who has acquitted the accused upon several grounds, accepts as one that the prosecution was instituted beyond the period of limitation. In this he was clearly wrong. He takes the offence to be the making of the encroachment itself, and not the failure to comply with the order to remove it, and it is not contested here that the date of the latter must be the determining factor. He then accepts the view that an application by the accused for the compensation should have been dealt with as a condition precedent to enforcing the removal. This, I think, is based upon a misreading of Ex. 2, a letter which was addressed on behalf of the accused to the President of the District Board, denying that the structures complained of were encroachments and warning him that if they had to be removed he would be held responsible for all costs and damages therefrom arising. Even, however, if there was a claim for compensation it is not disputed before me that the person receiving the notice could not make it a reason for non-compliance. As has been held in Municipal Council, Chicacole V/s. Seetharamayya Naidu A. I. R. 1925 Mad. 584 all that the Court has to see in such cases is whether the notice was served and whether it was disobeyed.

(2.) The next point is that the notice which was disobeyed was a second notice upon the same subject. I can find nothing in the facts of Ramchandra Chetty In Re A. I. R. 1926 Mad. 763 although there the interference of the criminal Court was sought under Section 221, of the Act, to distinguish it in principle from this case, and it was there held that there is nothing to prohibit the prosecution of a person against whom two notices have been served and who has disobeyed the second notice.

(3.) Lastly the lower Court has entertained the question whether in fact there were encroachments or not and has decided that the fact of encroachment was not proved. This question again is covered by authority Ramachandra Servai V/s. President Union Board, Karaikudi A. I. R. 1925 Mad. 1015 and whatever remedies may be open to the party, it is not the province of the criminal Courts to go into the question whether the encroachment exists. I consider accordingly that all the grounds upon which the acquittal is based are invalid and as the case is one of some importance I set aside the order of the lower Court and remand it for retrial according to law.