Tamal Lahiri v. Kumar P. N. Tagore
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 ap,Pellant
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 'ince the prose
cution was not instituted within '"" 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 res
pondent 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 tlie complaint on the ground that it was
barred by limitation. The judgment of the High Court rests on when
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TAMAL LAHIRI v. KUMAR P. N. TAGORE (Chandrachud, C.J.) 741
the period of six months began to run .than on how the six months' A
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 men
tioned 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,
r~move any obstruction or encroachment which has been erected with
out obtaining the requisite permission. Clause (b), on its true read
ing, empowers the Commissioners to issue a notice requiring any
person to remove an encroachment which bas 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 depo
sited 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
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direction or comply with the i:_equisition, as the case may be. Failure
in that regard attracts penal consequences. Though clause (b) of
section 240(1) d.oes 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 perfon
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 plaiil that within and during
that period he could not liave 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 understand
ing of the true position, namely, that since the offence under S.
500 (I )(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 obstniction 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 <;onstructing an encroach
ment 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 mto
that question because the offence for which the respondent is b1:ing
prosecuted does not consist in his erecting the encroachment or obs
truction on a public street but in his failure to remove it within the
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TAMAL I.AHIRI v. KUMAR P. N. TAGORE (Clzandrachud, C.J.) 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 respon
dent to remove the encroachmeut. On that date uo 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, limi
tation 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 pro.secution which was filed on June 19, 1968, was insti
tuted as required by S. 533, "within six months next after the com
mission" 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 J:!igh Court is right, because S. 3(27) of
the Bengal General Clauses Act, I of 1899, defines "3'1'1onth" to mean
a month reckon(jd according to the British calendar. The expression
"six months" which occurs in S. 533 of the Act must accordingly be
cons~rued to mean six calendar months and not 180 days. The offence,
being a11leged 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
j committed by tge 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.