PUBLIC PROSECUTOR Vs. AVHARIHARA IYER

JUDGEMENT

(1.) The Sub-Magistrate, Ariyalur, convicted the respondent who was the accused in C.C. No. 198 of 1946 on his file of an offence under Section 159(1) of the Madras Local Boards Act punishable under Section 207(1) of the Madras Local Boards Act and sentenced him to pay a fine of Rs. 100 ; in default to suffer simple imprisonment for two weeks. There was an appeal to the Sub-Divisional Magistrate, Ariyalur, and he set aside the conviction and sentence and acquitted the accused. The Crown appeals.

(2.) The prosecution was in respect of an alleged encroachment on a street called Vellala Street in Ariyalur town. The encroachment was in the shape of a tiled shed and a big masonry arch. These were part of the house of which the accused was an occupier. The grounds on which the Sub-Divisional Magistrate acquitted the accused were: (1) that as there was an owner residing in the town the action of the District Board in prosecuting the occupier "cannot be regarded as being consistent with the spirit of the provisions of law applicable to the case" (2) the prosecution failed to file the survey sketch in proof of encroachment; (3) the notice requiring the accused to vacate was not proved or filed as an exhibit for the prosecution.

(3.) It is impossible to support ground No. (1) of the Sub-Divisional Magistrate. The section is unambiguous in its terms as it enacts that the Local Board may by notice require "the owner or occupier of any premises to remove or alter any projection, encroachment or obstruction." The Magistrate was apparently aware that the Act gives the option to the president of the Local Board to charge either the owner or the occupier. Having found that it was so, he was not warranted in trying to resort to what in his opinion was the spirit of the provisions of law. It was contended by the learned advocate for the accused that you should so construe the section as to mean that the Local Board should prosecute either the owner or the occupier according to whoever is found to be the person making the encroachment or obstruction in question. There is nothing in the terms of the enactment, which compels me to adopt this construction. The prosecution was certainly not illegal, because it was directed against the occupier.