Azamkhan Vs. the State of Andhra Pradesh - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - no doubt refers to the committing of mischief by doing any act which renders or which is known likely to render any public road impassable or less safe for travelling. the term 'public' has been used as an adjective with regard to number of institutions or avocations like public authority, public fund, public health. it means that it is shared in or participated in or enjoyed by people at large.ordera.d.v. reddy, j.1. this petition is by the accused in c.c. no. 95 of 1968 on the file of the 1st class magistrate tandur against his conviction under section 431. i.p.c. which has been confirmed by the learned additional sessions judge. hyderabad, in appeal.2. the case of the prosecution was that in section nos. 21 and 22 known as ashanna and ramanna fields situate at kotalpur village belonging to the accused there is a government cart track connecting the villages of kothalpur damarcherla. tandur, navandgi and mailwar being used by the villagers for more than 40 years. that the accused intentionally blocked the cart track ten months prior to 1.3.68 by fencing it with sticks and had also ploughed it and raised crops and hence the charge.3. the accused had pleaded not guilty to the charge and the prosecution examined 8 witnesses in support of their case of whom p. ws. 1 to 4 speak of the running of the cart track and the accused putting up mud wall and thorn bushes across the passage blocking the way and then ploughing the land. p.w. 6 is the patwari who also speaks to the fact of the accused blocking the public wav and ploughing the land and to his sending the report ex. p-3 to the tahsildar on the complaint made by the villagers. p.w. 5 is the tahsildar who had directed p.w. 7 the revenue inspector to inspect the locality and make a report and p.w. 7 is the revenue inspector who speaks of his inspecting the field and finding the cart-track ploughed up and obstruction raised blocking the cart-track and of his drafting the panchanama ex. p-7 and submitting his report ex. p-4. he also speaks of the fact that the cart-track was again reopened by engaging 50 labourers for removing the bund and levelling the road.4. the accused had examined 3 witnesses in his defence. as per d. ws. 1 to 3 there is a cart track used by the public running through the field section nos. 21 and 22 belonging to the accused; but they say that this was never closed.5. the learned magistrate found that the cart-track was ploughed up after the accused had put up obstruction on both sides and he convicted the accused of the offence under section 431 i.p.c and this was confirmed in appeal. hence this petition.6. the only contention now raised and which was not set up earlier, is that the cart track is in the patta land of the accused and is not a government cart track and as such he has a right to close the same and he cannot be convicted of the offence under section 431 i.p.c as section 431 i.p.c. speaks of mischief caused to a public road. section 431 i.p.c. no doubt refers to the committing of mischief by doing any act which renders or which is known likely to render any public road impassable or less safe for travelling. the contention of the prosecution is that it is a government road. but no evidence has been adduced in proof of the same and admittedly it is in the patta land. the accused has relied on a decision in re muthu goundan air 1940 mad 216 = (1940) 41 cri lj 391 for his contention, that if it is a cart track running in patta land the accused cannot be convicted. but there the question whether it is government road or a private road has not been considered. besides there the accused was prosecuted for the offence under section 283 i.p.c. which deals with a person causing obstruction or inquiry to any person in any public way. therefore that decision cannot come to the rescue of the accused in this case.what has to be seen in this case is what is the real meaning of the term 'public road' used in section 431 i.p.c. 'public road' has not been defined in the act. the term 'public' has been used as an adjective with regard to number of institutions or avocations like public authority, public fund, public health. public house, public library. public prosecutor, public works etc as pointed in corpus juris secundum the word 'public' is ordinarily used with reference to a joint body of citizens. it means that it is shared in or participated in or enjoyed by people at large. otherwise it is common to all the people. the word 'public' therefore indicates the user it is put to and does not indicate ownership. therefore 'public road' is a road which is used by the public generally. in this case it is stated by p. ws. 1 to 4 that this road is being used by the public for going from village to village for over 30 years. it is the evidence of d. ws. 1 to 3 also that have been using this road running through the field s. nos. 21 and 22 belonging to the accused for taking carts etc. from village to village: therefore there can be no doubt that this is a public road. the accused therefore in putting up obstructions at both the ends of the road running through his field and tilling up the track, has committed the offence under section 431 i.p.c. the conviction is therefore correct and cannot be interfered with. in the result this petition is dismissed.

Judgment:
ORDER

A.D.V. Reddy, J.

1. This petition is by the accused in C.C. No. 95 of 1968 on the file of the 1st class Magistrate Tandur against his conviction under Section 431. I.P.C. which has been confirmed by the learned Additional Sessions Judge. Hyderabad, in appeal.

2. The case of the prosecution was that in Section Nos. 21 and 22 known as Ashanna and Ramanna fields situate at Kotalpur village belonging to the accused there is a Government cart track connecting the villages of Kothalpur Damarcherla. Tandur, Navandgi and Mailwar being used by the villagers for more than 40 years. that the accused intentionally blocked the cart track ten months Prior to 1.3.68 by fencing it with sticks and had also ploughed it and raised crops and hence the charge.

3. The accused had pleaded not guilty to the charge and the prosecution examined 8 witnesses in support of their case of whom P. Ws. 1 to 4 speak of the running of the cart track and the accused putting up mud wall and thorn bushes across the passage blocking the way and then ploughing the land. P.W. 6 is the patwari who also speaks to the fact of the accused blocking the public wav and ploughing the land and to his sending the report Ex. P-3 to the Tahsildar on the complaint made by the villagers. P.W. 5 is the Tahsildar who had directed P.W. 7 the Revenue Inspector to inspect the locality and make a report and P.W. 7 is the Revenue Inspector who speaks of his inspecting the field and finding the cart-track ploughed up and obstruction raised blocking the cart-track and of his drafting the panchanama Ex. P-7 and submitting his report Ex. P-4. He also speaks of the fact that the cart-track was again reopened by engaging 50 labourers for removing the bund and levelling the road.

4. The accused had examined 3 witnesses in his defence. As per D. Ws. 1 to 3 there is a cart track used by the public running through the field Section Nos. 21 and 22 belonging to the accused; but they say that this was never closed.

5. The learned Magistrate found that the cart-track was ploughed up after the accused had put up obstruction on both sides and he convicted the accused of the offence under Section 431 I.P.C and this was confirmed in appeal. Hence this petition.

6. The only contention now raised and which was not set up earlier, is that the cart track is in the patta land of the accused and is not a Government cart track and as such he has a right to close the same and he cannot be convicted of the offence under Section 431 I.P.C as Section 431 I.P.C. speaks of mischief caused to a public road. Section 431 I.P.C. no doubt refers to the committing of mischief by doing any act which renders or which is known likely to render any public road impassable or less safe for travelling. The contention of the prosecution is that it is a Government road. but no evidence has been adduced in proof of the same and admittedly it is in the patta land. The accused has relied on a decision in Re Muthu Goundan AIR 1940 Mad 216 = (1940) 41 Cri LJ 391 for his contention, that if it is a cart track running in patta land the accused cannot be convicted. But there the question whether it is Government road or a private road has not been considered. Besides there the accused was prosecuted for the offence under Section 283 I.P.C. which deals with a person causing obstruction or inquiry to any person in any public way. Therefore that decision cannot come to the rescue of the accused in this case.

What has to be seen in this case is what is the real meaning of the term 'public Road' used in Section 431 I.P.C. 'Public Road' has not been defined in the Act. The term 'public' has been used as an adjective with regard to number of institutions or avocations like Public authority, public fund, public health. Public house, public library. Public prosecutor, public works etc As pointed in Corpus Juris Secundum the word 'public' is ordinarily used with reference to a joint body of citizens. It means that it is shared in or participated in or enjoyed by people at large. Otherwise it is common to all the people. The word 'public' therefore indicates the user it is put to and does not indicate ownership. Therefore 'public road' is a road which is used by the public generally. In this case it is stated by P. Ws. 1 to 4 that this road is being used by the Public for going from village to village for over 30 years. It is the evidence of D. Ws. 1 to 3 also that have been using this road running through the field S. Nos. 21 and 22 belonging to the accused for taking carts etc. from village to village: Therefore there can be no doubt that this is a public road. The accused therefore in putting up obstructions at both the ends of the road running through his field and tilling up the track, has committed the offence under Section 431 I.P.C. The conviction is therefore correct and cannot be interfered with. In the result this petition is dismissed.