PETITIONER:
TAMAL LAHIRI
Vs.
RESPONDENT:
KUMAR P.N. TAGORE
DATE OF JUDGMENT13/09/1978
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
SARKARIA, RANJIT SINGH
REDDY, O. CHINNAPPA (J)
CITATION:
1978 AIR 1811 1979 SCR (1) 739
1979 SCC (1) 75
ACT:
Bengal Municipal Act (Act XV), 1932 Sections 240(1)(b),
500(1)(b), 533, scope of-Limitation of 6 months period, how
to reckon under s.533 of the Act-Whether 6 months means 6
calendar months or 180 days.
HEADNOTE:
A notice dt. 5-12-67 calling upon the respondent to
remove, within 15 days of the date of receipt of it, culvert
erected without the permission from the Municipality by him
thereby causing obstruction or encroachment over the main
municipal drain, not having been complied with, the
Baranagore Municipality through the appellant its Law
Assistant filed a complaint against the respondent under
s.240(1)(b) read with s.500(1)(b) of the Bengal Municipal
Act, 1932. The respondent's objection to its maintainability
on the plea of bar of limitation under s. 533 of the Act was
rejected by the trial court, but upheld by the High Court in
revision.
Allowing the appeal by special leave the Court,
^
HELD: (1) The offence charged against the respondent
concerned, consists not in the erection of an obstruction by
him but in his failure to comply with the direction lawfully
given to him to remove that obstruction that the offence
must be deemed to have been committed by the respondent, if
at all, not on the date of the notice viz. December 5, 1967
nor on any anterior date but on the expiry of the period
permitted to him for removing the obstruction viz. on the
expiry of the 15 days after the receipt of the notice; and
that the expression "6 months" which occurs in s. 533 of the
Bengal Municipal Act means 6 calendar months and not 180
days. [743E-G]
(a) S. 240(1) of the Act confers by its three clauses
various powers on the Commissioners. Clause (b) on its true
reading empowers the Commissioners to issue a notice
requiring any person to remove an encroachment which has
been erected without permission or which remains erected
after the expiry of the period covered by a permission
granted in that behalf. Though clause (b) of s. 240(1) does
not expressly provide that the Commissioners may permit such
time as they think fit for the removal of the encroachment,
it is implicit in the power conferred by that clause that by
a proper direction of requisition the Commissioners can
allow for the removal of the encroachment such time as they
consider reasonable in the circumstances of the case. [741F-
G, 742A-B]
(b) S. 500(1)(b) of the Act creates a some-what
artificial offence which does not consist in the original
Act of erecting the obstruction or encroachment but in
"failing to comply with any direction lawfully given" to a
person or "any requisition lawfully made upon him". By the
terms of the very notice, in the instant case, which
contained the direction or requisition the respondent was at
liberty to remove the encroachment at any time within 15
days after the receipt of the notice. In other words,
failure to comply with direction or requisition occur for
the first time within the meaning of s. 500(1)(b) on the
expiry of 15
740
days after December 5 i.e. to say after the expiry of
December 20. Since the offence under s. 500(1)(b) for which
the respondent is being prosecuted consists of his alleged
failure to comply with the particular direction or
requisition and since such failure occurred for the first
time after December 20, the period of limitation prescribed
by s. 533 of the Act for instituting the prosecution will
commence to run on the expiry of 20th December. [742B-C D-E.
F]
(2) Section 3(27) of the Bengal General Clauses Act
(Act 1), 1899 defines "a month" to mean a month reckoned
according to the British calender. The expression 6 months
which occurs in s. 533 of the Act must accordingly be
construed to mean 6 calendar months and not 180 days. The
offence being alleged to have been committed on the expiry
of December 20, 1967 and the prosecution having been
instituted on June 19, 1968, the provisions of s. 533 have
been fully complied with. [743D-E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 69
of 1972.
Appeal by Special Leave from the Judgment and Order
dated 22-12-70 of the Calcutta High Court in Crl. Revision
No. 697 of 1969.
P.K. Chatterjee and Rathin Das for the Appellant.
K.R. Chowdhary for the Respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, C.J. On December 5, 1967, the Baranagore
Municipality served a notice on the respondent alleging that
he had erected an obstruction over the main municipal drain
without the permission of the Administrator of the
Municipality and calling upon him to remove the same within
fifteen days of the date of receipt of the notice. A similar
notice was sent to the respondent by registered post which
he received on December 7. On the respondent’s failure to
comply with the requisition the Municipality, through the
appellant who is its Law Assistant, filed a complaint
against him under s. 240(1)(b) read with section 500(1)(b)
of the Bengal Municipal Act, XV of 1932, (“The Act”). The
respondent took a preliminary objection to, the
maintainability of the complaint on the ground that since
the prosecution was not instituted within six months next
after the commission of the offence, it was barred by
limitation under section 533 of the Act. That objection
having been rejected by the trial court, the respondent
filed a revisional application in the Calcutta High Court.
It will not be quite accurate to say that the respondent’s
objection, in the form in which it was taken by him, was
upheld by the High Court, but the High Court did dismiss the
complaint on the ground that it was barred by limitation.
The judgment of the High Court rests on when
741
the period of six months began to run than on how the six
months’ period is to be reckoned. Being aggrieved by the
judgment of the High Court dated December 22, 1970 the
Municipality has filed this appeal by special leave.
Section 240(1)(b) of the Act provides to the extent
material that the Commissioners may issue a notice requiring
any person to remove any obstruction or encroachment which
he may have erected upon any public street, drain or
watercourse and which remains so erected after the period
covered by any permission given in that behalf has expired.
The notice dated December 5, 1967, was given by the
Municipality to the respondent under this provision. The
relevant part of section 500(1)(b) of the Act provides that
whoever commits any’ offence by “failing to comply with any
direction lawfully given to him or any requisition lawfully
made upon him” under any of the provisions of the Act, shall
be punished with fine which may extend to the amount
mentioned in the third column of the table following that
section. Section 533 of the Act prescribes a period of
limitation for filing prosecutions under the Act by
providing that no prosecution for an offence under the Act
shall be instituted “except within six months next after the
commission of such offence”. The narrow question for
determination in this appeal is whether the prosecution was
instituted in the instant case within six months next after
the commission of the offence as required by S. 533 of the
Act.
For a proper appreciation of this question it is
necessary to advert briefly to the scheme of the Act
because, without a proper appreciation and understanding of
what in fact constitutes an offence for the present
purposes, it will be impossible to resolve the question as
to whether the prosecution is barred by limitation. Section
240(1) of the Act confers by its three clauses various
powers on the Commissioners. Under clause (a) the
Commissioners may, without giving a notice, remove any
obstruction or encroachment which has been erected without
obtaining the requisite permission. Clause (b), on its true
reading, empowers the Commissioners to issue a notice
requiring any person to remove an encroachment which has
been erected without permission or which remains erected
after the expiry of the period covered by a permission
granted in that behalf. Clause (c) of section 240(1) confers
upon the Commissioners the power to remove without notice
any materials or goods which have been deposited in a public
street without the requisite permission or which continue to
be deposited after the permission has expired. The person to
whom a lawful direction has been given or upon whom a lawful
requisition has been made through notice under section
240(1)(b) has to carry out the
742
direction or comply with the requisition, as the case may
be. Failure in that regard attracts penal consequences.
Though clause (b) of section 240(1) does not expressly
provide that the Commissioners may permit such time as they
think fit for the removal of the encroachment, it is
implicit in the power conferred by that clause that by a
proper direction or requisition, the Commissioners can allow
for the removal of the encroachment such time as they
consider reasonable in the circumstances of the case.
Section 500(1)(b) of the Act creates a somewhat artificial
offence which, it must be remembered, does not consist in
the original act of erecting the obstruction or encroachment
but in “failing to comply with any direction lawfully given”
to a person or “any requisition lawfully made upon him”.
Respondent having been allowed by the notice dated
December 5,1967 a period of fifteen days for the removal of
the encroachment alleged to have been erected by him, it is
plain that within and during that period he could not have
been prosecuted under section 500(1)(b) for failure to
comply with the direction or requisition. The reason simply
is that by the terms of the very notice which contained the
direction or requisition, he was at liberty to remove the
encroachment at any time within fifteen days after the
receipt of the notice. In other words, failure to comply
with the direction or requisition occurred for the first
time, within the meaning of section 500(1)(b), on the expiry
of fifteen days after December 5, that is to say, after the
expiry of December 20.
A proper appreciation of this scheme will facilitate
the understanding of the true position, namely, that since
the offence under S. 500(1)(b) for which the respondent is
being prosecuted consists of his alleged failure to comply
with the particular direction or requisition, and since such
failure occurred for the first time after December 20, the
period of limitation prescribed by S. 533 of the Act for
instituting the prosecution will commence to run on the
expiry of 20th December. It is impossible to accept the
submission made by the respondent’s counsel that the offence
must be deemed to have been committed when the obstruction
or encroachment was erected, which of course would be prior
to December 5, 1967, when the Municipality served the notice
on the respondent. It may perhaps be that constructing an
encroachment or obstruction on a public street may itself
amount to an offence under some provision or the other of
the Act, but we need not go into that question because the
offence for which the respondent is being prosecuted does
not consist in his erecting the encroachment or obstruction
on a public street but in his failure to remove it within
the
743
period allowed to him by the notice. The error into which
the High Court fell was to hold that the offence was
committed on December 5, being the date on which the
Municipality gave the notice to the respondent to remove the
encroachment. On that date no offence indeed was committed
because, as stated above, the offence charged against the
respondent consists in his failure to remove the
encroachment within the time allowed by the Municipality by
its notice.
We must, therefore, proceed on the basis that the
failure to remove the encroachment having occurred on the
expiry of December 20, limitation began to run for the
purpose of S. 533 on that and not on any earlier date. The
only question which then requires examination is whether the
prosecution which was filed on June 19, 1968, was instituted
as required by S. 533, “within six months next after the
commission” of the offence. An argument was raised in the
High Court that “six months” must be construed to mean 180
days and not six calendar months. The High Court does not
appear to have accepted that submission. There the High
Court is right, because S. 3(27) of the Bengal General
Clauses Act, I of 1899, defines “a month” to mean a month
reckoned according to the British calendar. The expression
“six months” which occurs in S. 533 of the Act must
accordingly be construed to mean six calendar months and not
180 days. The offence, being alleged to have been committed
on the expiry of December 20, 1967, and the prosecution
having been instituted on June 19, 1968, the provisions of
S. 533 must be held to have been duly complied with.
To sum up, we are of the view that the offence charged
against the respondent consists, not in the erection of an
obstruction by him, but in his failure to comply with the
direction lawfully given to him to remove that obstruction;
that the offence must be deemed to have been committed by
the respondent, if at all, not on the date of the notice
viz. December 5, 1967 nor on any anterior date but on the
expiry of the period permitted to him for removing the
obstruction viz. on the expiry of fifteen days after the
receipt of notice; and that, the expression “six months”
which occurs in S. 533 of the Act means six calendar months
and not 180 days.
For these reasons we set aside the judgment of the High
Court and send back the case to the learned Magistrate for
disposal in accordance with law.
S.R. Appeal allowed.
744