Decided on August 12,1953

Sardar Sahu Appellant
President Of The Union Board Of Bargarh Respondents


Panigrahi, J. - (1.) THE Petitioner has been convicted under Section 290 I.P.C. for having encroached upon a portion of plot No. 1306 which is said to form a part of a 'Hat' area. The prosecution evidence discloses that in the year 1945 a similar case has been instituted against the father of the Petitioner under Section 290 I.P.C. for creating a kutcha house on the land of the Union Board of Bargarh for 'Hat' purposes. It is the admitted case of both parties than the Petitioner has converted the kutcha house into a pucca one. The question is whether he can be prosecuted for encroachment made sometime prior to the year 1945, or whether the putting up of a pucca house constitutes a nuisance. It is admitted that the land encroached upon measures 23' by 8' and adjoins the dwelling house of the Petitioner. P.W. 2 however admits that the plot No. 1306 was not in exclusive possession of the Union Board and that soma people had acquired portions of it. He also admits that the weekly 'Hat' sits at a distance of about 60 or 70 cubits from the house of the Petitioner. He further admits that from the house of the Petitioner one can go easily over the road. In the light of these admissions it is difficult to hold that the alleged encroachment constitutes a public nuisance. There may be an encroachment Brad yet it may fall short of a nuisance. P.W. 2 himself admits that the 'Hat' sits 60 or 70 abuts away and that there is no obstruction to traffic. It also emerges from the evidence that the accused has been in possession of the plot for a number of years though his father wag convicted under Section 290 I.P.C.
(2.) THE fact that his father was convicted would not, per se constitute the offence of encroachment. Of course if the land belongs to the Union Board the possession of the Petitioner for however long a period would not be any the less an encroachment, bat such a situation may perhaps only give rise to a Civil right and a prosecution in a criminal court is not the appropriate way to settle the dispute. In the present case, I am of opinion that having regard to the long possession of the Petitioner and having regard to the admission of P.W. 2 that plot No. 1306 is not in exclusive possession of the Union Board there seems to be some bonafide dispute between the parties which can only be adjudicated in a Civil Court. This prosecution is therefore misconceived. I would accordingly allow this revision, set aside the conviction and sentence imposed on the Petitioner and direct that fine, if paid, shall be refunded to him forthwith the;

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