Full Judgment
Stephen and Carnduff, JJ.
1. The petitioner in this case has been convicted of an offence under a bye-law made under Section 140 of the Bengal Local Self-government Act, 1885. He has been fined in respect of a continuing offence. The bye-law on which the proceedings are based, is that, 'no person shall damage or encroach on any part of a road, its slopes or side-ditches by,' among other things, 'placing a fence thereon.'
2. We have granted a rule to show cause why the conviction of the petitioner should not be set aside on the ground that the land alleged to have been encroached on is not such a road or roadside land or slope as is contemplated by the Act and the bye-laws framed thereunder.
3. The question of fact, which the Court below has decided, is whether the fence, which has admittedly been constructed, stands on the slope of the Rajmehal road. Reviewing a considerable body of evidence with apparently considerable discretion, the Court has found that the present fencing stands on the District Board roadside land, and has added a further direction which is immaterial to the present purpose. On Considering the facts on which this finding is based, and on looking at the evidence on the record, we see no reason at all to differ from this view of the case.
4. It is argued before us that the bye-law must be considered as confined to cases in which the encroachment impedes the passage along the highway. We cannot find any authority in the Act or in the bye-law for any such view, and such a view is certainly contrary to the plain terms in which the bye-law is expressed. It may be taken for the present purpose as admitted that the District Board has no proprietary right in the road or in the land on which its slopes or side-ditches stand, and that its rights are confined, for the purpose of this case, to maintaining the road. It is, however, empowered to make bye-laws for this purpose. It has made a bye-law which prohibits any encroachment on the slope of a road, and the validity of that bye-law is not now in question. Consequently, any such encroachment as this is held, on good evidence, to be an offence.
5. The result is that the conviction cannot be disturbed. The fine imposed in respect of the continuing offence, which may be committed after the date of the proceeding, is, however, illegal, and consequently this much of the sentence is set aside: otherwise the rule is discharged.