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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

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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

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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

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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

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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