Order.- The petitioner was convicted under sections 79(c) and 115(1) of the Madras Village Panchayats Act (X of 1950) and was sentenced to pay a fine of Rs. 5. The charge against him was that he removed earth from a drain adjoining a public pathway known as “Peruvattom Thazha foot path” in ward No. 14 of Badagara Panchayat. He denied the removal of the earth and further contended that even if earth was removed, it was done in connection with a bona fide agricultural operation and that the act did not constitute an offence. The learned Magistrate found that he had actually removed the earth as alleged by the prosecution, that it was done as a bona fide agricultural operation but that he was nevertheless guilty, as the opinion of the Inspector of Panchayats that it was so had not been obtained’ Shri P. Govinda Menon, learned counsel for the petitioner, did not question the finding of fact regarding the removal of the earth. However, it was contended that in view of the finding that the removal was in connection with a bona fide agricultural operation, the petitioner should not have been convicted. The argument advanced was that it was incumbent on the prosecution to prove that in the opinion of the Inspector of Panchayats the removal of the earth was not a bona fide agricultural operation. Reference was made to section 221 of the Madras District Municipalities Act which authorises the executive authority to require a person to desist from dangerous quarrying and also to section 157 of the Madras District Boards Act which provides that no person should work a quarry or remove stone, earth or other material from any place within 20 yards of a public road or other immovable property belonging to the District Board without obtaining a licence from the District Board permitting him to do so. It was pointed out that there was no such provision in the Madras Village Panchayats Act enjoining the obtaining of prior permission or sanction to do such quarrying. Though there is no such provision in the Village Panchayats Act, there is a provision in the rules for obtaining a licence from the Panchayat and reference will be made to this later. This case has to be decided on a construction of the relevant provisions of the Village Panchayats Act. Though there is no such provision in the Village Panchayats Act, there is a provision in the rules for obtaining a licence from the Panchayat and reference will be made to this later. This case has to be decided on a construction of the relevant provisions of the Village Panchayats Act. Section 79(c) provides: "No person shall, except as permitted by rules made under this Act and except in accordance with the conditions imposed by any licence made requisite by such rules- * * * * * * * * * * * * (c) work a quarry in or remove stone, earth or other material from any place within twenty yards of a public road or of other immovable property vesting in or belonging to a panchayat, provided that nothing in this clause shall be deemed to apply to any work which, in the opinion of the Inspector, is done in connection with a bona fide agricultural operation. Section 115(1) reads as follows: (1) "Whoever- (a) contravenes any of the provisions of this Act specified in the first and second columns on Schedule I, or (b) contravenes any rule or order made under any of the provisions so specified, or (c) fails to comply with any direction lawfully given to him, or any requisition lawfully made upon him under or in pursuance of any of the said provisions, shall be punishable with fine which may extend to the amount mentioned in that behalf in the fourth column of the said Schedule ". The argument was that the prosecution should prove that earth was not merely removed but that the removal was not for a bona fide purpose in the opinion of the Inspector of Panchayats. Reliance was placed on the proposition that in all criminal trials the onus was on the prosecution, not only to establish the guilt of the accused but also to show that conditions do not exist which would entitle the accused to any protection under the law. I am unable to accept that latter part of the proposition The onus with regard to the proviso to section 75(c) is on the accused and it is for him to establish that the proviso is attracted to the case. The proviso offers a special defence to the case and it is for him to show that it is applicable and that prosecution must therefore fail. The proviso offers a special defence to the case and it is for him to show that it is applicable and that prosecution must therefore fail. This view is supported by the decision of Mookeriee J., in Nishikanta Ghosh and another v. The Corporation of Calcutta1. A similar view was taken by the Allahabad High Court in Rameshwar Das v. Emperor2. It was not proved by the accused that the proviso to section 79(c) was applicable to this case. Reference may be made in this connection to the rule made in exercise of the powers conferred by sections 79 and 112(1) of the Village Panchayats Act. Rule 1 provides that no person shall work a quarry in or remove stone, earth or other material from any place within 20 yards of a public road or other immovable property vesting in or belonging to the Panchayat, except under licence granted by the Panchayat. Under rule 1(2) the Panchayat may require any person to discontinue the working of any quarry or the removal of stone, earth or other material from -any place if in the opinion of the Panchayat the working of the quarry or removal of stone, earth or other material is dangerous to persons residing in or having legal access to a neighbourhood thereof or is likely to create a nuisance. Earth was removed by the petitioner from a drain adjoining the abutment of the pathway without obtaining the requisite licence and a notice was issued by the Executive Officer of the Panchayat to the petitioner to repair the damage but he refused to comply with the same. The prosecution was launched on the refusal of the petitioner to act in accordance with the notice served on him. Section 115(1) makes contravention of the provisions of the Act or any rule or order made under the provisions of the Act. Faced with this position, Shri Govinda Menon had an argument that the rule in question was ultra vires. There is no substance in this argument. The rule was made under sections 79 and 112 of the Act and the latter section enables the Government to make rules generally to carry out the purposes of the Act. The object of making the rule was to carry out the purpose of section 79 which prohibits acts of the nature committed by the petitioner. It is therefore clear that the conviction is proper. The object of making the rule was to carry out the purpose of section 79 which prohibits acts of the nature committed by the petitioner. It is therefore clear that the conviction is proper. The petitioner has clearly contravened section 79(1) and rule 1 referred to above. The conviction is therefore proper. The learned Magistrate imposed only a light sentence as in his opinion the removal of the earth was in connection with a bona fide agricultural operation, although it involves violation of a technical rule. In the circumstances I do not consider any modification is necessary so far as the sentence is concerned. The Criminal Revision Petition fails and is dismissed. M.C.M. ----- Petition dismissed.