Decided on July 14,1970

Vilakku Syed Ismail Natchi Respondents


K.N.MUDALIYAR J. - (1.) THE State appeals against the order of the District Magistrate (J), Tirunelveli, acquitting the respondent -accused of the offence under Section 82(1)(a) read with Section 181(2)(c) of the Madras Panchayat Act, 1958.
(2.) THE respondent Vilakku Syed Ismail Nachi had occupied Panchayat street to the extent of 234 square feet in Kuthukal Street by constructing a portion of the house from 27th April, 1967. P.W. 1 issued notice for the removal of the said encroachment. She did not comply with the notice issued for the removal of the encroachment. P.W. 1 prosecuted her under Section 181 of Madras Panchayat Act. She admitted the offence in the Court of the Sub -Magistrate, Tiruchendur on 17th June, 1967. On 19th August, 1967 P.W. 1 issued through P.W. 3 notice marked Exhibit P -2. But that was refused by the respondent. The original was served on the respondent by affixture attested by the Village Munsif, P.W. 4. Exhibit P -2 is the duplicate copy of the notice served by affixture, with the Athakashi, Exhibit, P -4. Again the respondent did not comply with the notice for the removal of the encroachment. Ultimately, P.W. 1 filed the complaint on 19th September, 1967 which was taken cognizance of by the Court as a valid complaint on 20th September, 1967. On these facts, the trial Magistrate found the accused -respondent guilty of the offence ; but the District Magistrate (J) acquitted the respondent on the ground that the complaint filed on 19th September, 1967 was barred by limitation by reason of the fact that she was found guilty by the Sub -Magistrate, Tiruchendur on 17th June, 1967.
(3.) THE learned Public Prosecutor argued that the acquittal of the respondent -accused is unjustified on the ground of proper construction of Sections 82(1)(a), 166 and 181(2)(c) of the Madras Panchayat Act, 1958. Section 82 embodied prohibition against obstructions in or over public roads, etc. The fact that the respondent -accused has encroached over the Panchayat land to the extent of 234 square feet remains uncontroverted. No person shall make any encroachment whatsoever whether permanent or temporary in or over public roads, except as permitted by rules made under the Panchayat Act and except in accordance with the conditions imposed by any licence made requisite by such rules. Section 166 of the Panchayat Act, 1958, is extracted below. Persons empowered to prosecute : Save as otherwise expressly provided in this Act, no person shall be tried for any offence against this Act or any rule or bylaw made thereunder unless complaint is made within three months of the commission of the offence, by the Police, the executive authority, the Panchayat Union Council, the commissioner or a person expressly authorised in this behalf by the Panchayat, panchayat union council, executive authority or commissioner, but nothing herein shall affect the provisions of the Code of Criminal Procedure, 1898 (Central Act V of 1898), in regard to the power of certain Magistrates to take cognizance of offences upon information received or upon their own knowledge or suspicion: Provided that failure to take out a licence or obtain permission under this Act shall, for the purposes of this section, be deemed to be a continuing offence until the expiration of the period, if any, for which the licence or permission is required and if no period is specified, complaint may be made at any time within twelve months from the commencement of the offence. The relevant part of Section 181(2)(c) reads as follows: (2) Whoever after having been convicted of (c) failing to comply with any direction lawfully given to him or any requisition lawfully made upon him under or in pursuance of any of the said provisions, continues to contravene the said provision or the said rule or order, or continues to fail to comply with the said direction or requisition, shall be punishable for each day after the previous date of conviction during which he continues so to offend, with fine which may extend to the amount mentioned in that behalf in the fourth column of the said schedule.;

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