IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 CRL.A.No. 2109 of 2003() ----------------------------------- CC.557/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VARKALA .................... PETITIONER/COMPLAINANT: ---------------------------------------- SEKHARAN SNEHAPRABHA, PRABHA NIVAS, PRALAYILKONAM, MUTTAPPALAM DESOM, CHEMMARUTHI VILLAGE. BY ADV. MR.MOHAN JACOB GEORGE RESPONDENTS/ACCUSED 1 TO 6 & STATE: ------------------------------------------------------------- 1. LALITHAMBIKA, CHEMMARUTHI GRAMA PANCHAYAT, NOW AT THE OFFICE OF THE ADDL.DIRECTOR OF PANCHAYATH,THIRUVANANTHAPURAM 2. SYAMALA, KAVUVILA VEEDU, THEKKADU DESOM,CHEMMARUTHI VILLAGE 3. SUSEELA, BAMA SADANAM, NEAR GOVT.PRIMARY SCHOOL, SREENIWASAPURAM, CHEMMARUTHI VILLAGE. 4. SUNIL, S/O. SUSEELA -DO- -DO-. 5. DHARMARAJAN, S/O. VELU, PLAVILA VEEDU, PRALEYAGIRI, CHEMMARUTHI VILLAGE. 6. CHANDRABABU, S/O. DHARMARAJAN -DO-. 7. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR. R7 BY PUBLIC PROSECUTOR MR.C.M. NAZAR R1 TO R4 BY ADV. MR.VAKKOM N.VIJAYAN, MR.R.SURESH , SMT.VINITHA PRASANNAN , MR.P.ANIYAN , SMT.REENA.C.STEPHENSON, MR.A.S.SACHIN. R5 BY ADV. SMT.LIGEY ANTONY. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 2109 OF 2003 = = = = = = = = = = = = = = = Dated this the 10th day of August, 2009. J U D G M E N T This appeal is preferred against the order of acquittal passed by the Judicial First Class Magistrate-Varkala in C.C.557/99. A private complaint was filed against the accused alleging offences u/Ss.447, 427, 379, 506, 201 r/w S.149 IPC and the Court had taken the case into file u/s 143, 146, 447, 227, 379, 506(ii) r/w 149 IPC against A1 to A6. It is the case of the complainant that she had purchased four cents and 800 sq.mt. of landed property in Sy.No.4525 Chemmaruthi village as per a sale deed dated 2109/82. According to her she has been in possession and enjoyment of the property ever from the date of purchase. Accused No.5 is the father of accused No.6 and he is the owner of the property on the northern side of the complainant's property and there is a road on the southern side of her property. It is contended that in order to widen the road they have trespassed into the private property of the complainant, demolished it, took away the materials Crl.A. 2109 OF 2003 -2- and also threatened them. They have also cut and removed the trees and demolished the boundary wall and therefore had committed the offences mentioned above. The case of the defence appears to be that they had done it in good faith for the reason that the Panchayat Secretary on receipt of a complaint had issued notice preventing the complainant from making any construction in the property and in spite of the same when they did it, with the aid of the police, the construction has been demolished and thereby they have only done the action in good faith. 2. The Court below on an elaborate consideration of the entire materials held that the act done is in good faith and therefore the Panchayat authorities are entitled to get protection u/s 248 and 250 of the Panchayat Act and therefore acquitted the accused. S.52 of the IPC defines good faith. “Nothing is said to be done or believed in 'good faith' which is done or believed without due care and attention”. S.248 of the Panchayat Act states that sanction is necessary to proceed against the Secretary of the Panchayat. S.250 gives direction against the prosecution after acts are done in good faith. So the ultimate result of the prosecution depends upon the Crl.A. 2109 OF 2003 -3- finding whether the act is done in good faith or not. If the act is done in good faith no prosecution will lie otherwise certainly prosecution will lie against all acts have been committed by the accused in the case. 3. Now there had been two litigations referred to in the judgment, one is O.S.195/98 and the other is of the year 1995. Admittedly the Panchayat is not a party to any of these civil litigations. So one cannot affix the liability on the Panchayat under law and it is not a judgment which is binding against the Panchayat. Now I have just perused the records to find out whether there has been any good faith or not. Ext.D1 is a notice issued by the Chemmaruthi Grama Panchayat intimating the public regarding the mandate of S.220(b) of the Panchayat Act. It was in that notice it is stated that any person who constructs a building or structure is not entitled to do it. Ext.D2 is a communication dated 9.7.1998 issued to the complainant from the office of the Panchayat stating that she is attempting to make some constructions and the route is included in the Panchayat register and she has to meticulously follow S.220(b) of the Panchayat Act and therefore she should not construct anything Crl.A. 2109 OF 2003 -4- in the property. It is also stated if it is done against the directions proper action will be initiated. Ext.D3 is a letter addressed to the Secretary of the Panchayat by the P.W.D. Assistant Engineer whereby the Asst. Engineer has requested the authority to take action to stop construction activities by the complainant. Ext.D4 is a letter addressed by the Secretary of the Panchayat to the Superintendent of Police, Thiruvananthapuram to give Police aid to demolish the construction done by the complainant against the orders of the Panchayat. Ext.D5 is a resolution dated 28.7.1998 whereby the Panchayat committee has ratified the action taken by the Secretary and they decided to claim an amount of Rs.3,960/- from them. Ext.D6 is the sketch relating to the property. Ext.D7 is an order of this Court in W.A.1773/98 whereby the appeal filed had been disposed of by this Court. Ext.D8 is an order passed by the Deputy Director of Panchayat on a petition filed by the complainant Snehaprabha. Ext.D9 is another resolution passed by the Panchayat dated 13.1.99. Ext.D10 and D11 are the documents of the year 1999 with respect to this subject matter. So the production of documents Exts.D1 to D11 is to bring to the notice of the Court that the Crl.A. 2109 OF 2003 -5- Panchayat authorities were under the belief that an act against the statute is being done and therefore they have initiated action against the complainant. 4. The learned counsel for the appellant very strongly contends before me S.220(b) of the Panchayat Act does not envisage a situation where permission is to be obtained for the purpose of construction of a compound wall and therefore the notice Ext.D1 is of no consequence as far as it relates to the complainant is concerned. When a notice is published and subsequently a notice is personally issued to a party not to do any construction with a direction that legal action will be initiated for violation of the orders and when subsequently with a petition to the Superintendent of Police, Secretary of the Panchayat or the concerned authorities proceeded to the place and demolished the construction one cannot attribute those actions as a criminal trespass or substantive failure of the fundamental right of a citizen. 5. On one hand the complainant pleads that she is not bound by any directions issued by the Panchayat on the ground that her action is not in violation of 220(b) of the Panchayat Act. The Panchayat on the contra pleads that it is Crl.A. 2109 OF 2003 -6- an act done by an individual against law and therefore wants to restore it into its original position. When the Panchayat authorities feel there is violation of law one cannot hold that the action is not done in good faith. But the materials supplied before the Court would convincingly show one factor that the Panchayat secretary has not taken the law into her own hands and a group of people had not trespassed into the area of complainant and did wanton acts alleged to be committed by them. She had only proceeded after issuing a notice and that notice was dated 9.7.98 and the alleged demolition is done only on 27.7.98. The complainant is a person who is well conversant with the law and procedure for the reason that she had been litigating in a civil Court of competent jurisdiction at least from 1995 onwards. When such a person receives a notice from the Panchayat rightly or wrongly ordinarily we will expect her to reply the notice contending that the Panchayat has no business to interfere with her construction as it is done perfectly in accordance with law. A person who had approached the Court for remedy previously certainly may have approached the Court as well for ventilating her grievance. I am stating that the action done by the Panchayat Crl.A. 2109 OF 2003 -7- is justified for the reason that according to them construction is done against the law. Here is a case where the Panchayat Secretary on the basis of a written complaint in her official capacity after intimating the complainant with the help of the Police seem to have filed a petition before the District Superintendent of Police for effective action. It may not be proper at all to state that she is a rank trespasser in order to commit waste in the property. So I am in agreement with the learned Magistrate that the action has been initiated by the Panchayat only on the bonafide and good faith and therefore a prosecution cannot lie. If they have exceeded their powers or if they have done something in excess or against law there is always remedy left open to them for claiming damages in the form of a civil suit. But there also other ingredients necessary may have to be established. I do not propose to interfere with the order of acquittal passed by the Court below and therefore the Crl.Appeal fails and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/-