Madras High Court
Velayudam Servai vs Special Officer, Panchayat Board on 14 October, 1943
Equivalent citations: (1943)2MLJ595, AIR 1944 MADRAS 134
ORDER Kuppuswami Aiyar, J.
1. The petitioner was convicted, by the Assistant Tahsildar Magistrate of Ramnad for an offence punishable under Section 207 of the Local Boards Act for having disobeyed a requisition of the Local Board calling upon him to remove an encroachment on a public road and was sentenced to pay a fine of Rs. 75. He was also directed to pay a fine of Rs. 5 per day until the encroachment is removed. On appeal the Joint Magistrate of Ramnad confirmed the conviction and sentence.
2. The first contention of the petitioner is that he has obtained a prescriptive right over the plot encroached upon. But under Section 159(2) of the Local Boards Act even if a person had acquired such a prescriptive right he could only claim a reasonable compensation in respect of the damage caused by the removal or alteration of the encroachment. But the payment of compensation is not a condition precedent and this was pointed out by this Court in Narayana Iyer v. Subramania Chetti A.I.R. 1927 Mad. 1113. Consequently the failure to offer compensation cannot be said to vitiate the conviction for the offence punishable under Section 207(1).
3. With regard to the order directing the payment of a fine of Rs. 5 per day until the encroachment is completely removed, this sentence was awarded under Section 207(2). That section reads as if such an order could be passed only if there has been a first conviction for failure to retrieve or alter an encroachment and the person persists in failing to comply with the requisition. A second charge sheet will have to be laid and it is only on a conviction on such a charge-sheet a sentence could be awarded under Section 207(2). The sentence under Section 207(2) directing the petitioner to pay a fine of Rs. 5 per day till the encroachment is completely' removed has hence to be set aside and it is set aside accordingly.