Haribhusan Deb vs Jaynagar Mazilpur Municipality

Debabrata Mookerjee, J.—This Rule is directed against an order of a Magistrate, at Alipore convicting the Petitioner u/s 239 read with Section 500 of the Bengal Municipal Act, 1932, and sentencing him to pay a fine Rs. 30, in default to suffer simple imprisonment for three weeks. An application, for a reference to this Court u/s 438 of the Code of Criminal Procedure was, however, rejected by an Additional Sessions Judge, 24-Parganas.

A complaint was filed by an Overseer of Jaynagore Mazilpur Municipality alleging that the Petitioner had caused to be affixed to his building, being premises No. 42, Kamarpara Road, spouts, for discharging water which fell on the Municipal Street in such manner as to cause inconvenience to users of the road. The case of the Municipality was that a notice u/s 239 of the Act had been served upon the Petitioner requiring him to take order with the pipes and spouts in question so as to avoid inconvenience to members of the public using the street; but that notice was disregarded and the Petitioner did not comply with it although time was given to remedy the state of the water pipes. The notice was dated January 16, 1955, and was actually served on the Petitioner on February 5'' The Petitioner not having complied with it, a complaint was filed in court on May 31, 1955, charging the Petitioner with having failed to comply with the requisition referred to above.

The Petitioner pleaded innocence and his case generally was that the spouts in question had been in existence for a very long time and that he was prosecuted at the instance of designing persons. His case further was that the Municipality had failed to establish that the prosecution had been commenced within the time prescribed by law.

On a consideration of the evidence the learned Magistrate came to the finding that the notice bad in fact been served and that there was failure on the part of the Petitioner to carry out the requisition of the Municipality.

Mr. Ghosh appearing in support of the Rule has argued that the conviction cannot be sustained in view of the fact that the proceedings were commenced at a point of time beyond the period of limitation prescribed under the Act. Section 533 provides that no prosecution for an offence under the Act shall be instituted except within six months after the commission of such offence, unless the offence is continuous in its nature, in which case a prosecution may be instituted within six months of the date on which the commission or existence of the offence was first brought to the notice of the Chairman. It has been contended on behalf of the Petitioner that the spouts and the pipes had been in existence for a very long time and that being so, it is inconceivable that the Municipality should have been unaware of the condition of the pipes and the spouts. Reliance is placed on a statement in the evidence of the Overseer to the effect that the state of things now complained of by the Municipality had been in existence for a long time. It is indeed difficult to take this piece of evidence on its face value. On the other hand, if this was the only evidence in the case and if the prosecution depended solely upon it, then it would be extremely doubtful whether the Municipality could be said to have commenced the proceedings within the time limited by law. But the actual position here so far as the question of limitation is concerned is different. Section 239 expressly refers to a notice which may be issued requiring the owner or occupier of a building or land abutting on a street to put and keep in good condition proper troughs and pipes for receiving and carrying off water from any building or land, and for discharging the same in such manner as not to inconvenience users of the road. In compliance with this provision of the law, a notice was issued by the Municipality requiring the Petitioner to take order with his pipes and spout3, but that requisition was disregarded with the result that the Municipality felt compelled to institute the present prosecution.

In my view the essence of the offence was failure to comply with the requisition which had lawfully been made by the Municipality and it is that failure which is punished under the provisions of Section 500 read with Section 239 of the Act. Clause (b) of Sub-section (1) of Section 500 makes it clear that when a person commits an offence by failing to comply with any direction lawfully given to him or any requisition lawfully made upon him under the provision of the Act, he shall be liable to be punished in the manner indicated in the table attached to the section. The gist of the offence, therefore, is the failure to carry out the requisition of the (Municipality and the offence was committed only when that failure occurred. On the evidence in the case it must be held that the failure occurred some time after the actual receipt of the requisition by the petitioner The date of receipt was February 5, 1955, and the present prosecution was commenced on May 31, 1955. That being so, it must be held that the prosecution was well within the period of limitation prescribed by Section 533 of the Act to which I have referred. The point of time which is material is the point when failure occurs to comply with the requisition and limitation will begin to run from the moment of such failure. I feel fortified in the view I take by a Bench decision of this Court in the case of The Municipal Commissioners of Raniganj v. Kedar Kalwar (1953) 57 C. W. N. 704 where it was held that the starting point of limitation u/s 533 of the Bengal Municipal Act, for prosecution of an offence u/s 500 read with Section 240(1) (b) of the Act is the date on which there was failure to comply with the requisition u/s 240(l)(b) of. the Act. It is instructive to note that Section 240(l)(b) is concerned with the question of removal of encroachment, hoarding, scaffolding, fence, platform from any public street, sewer, drain, etc. Tie decision to which I have just referred related specifically to a case covered by Clause (b) of Sub-section (1) of Section 240. That clause requires a notice in writing to be served on the person asking him to remove the obstruction in question. Section 239 with which I am concerned in the present case is along lines exactly similar to those in Clause (b), Sub-section (1) of Section 240. Here also the Commissioners may require by notice the owner or occupier of a building to put up and keep in good condition proper troughs and pipes when discharging water so as not to inconvenience persons passing along the street. In these two classes of cases some of the main features of the offenses are identical. It must, therefore, be held that an offence u/s 239 of the Act is committed only when there is refusal or failure to carry out the requisition or to comply with the notice mentioned in the section. In this view of the matter it must be held that there is no substance in the objection raised on behalf of the Petitioner that the present prosecution was barred by limitation.

The next ground of objection raised by Mr. Ghosh is that the sentence of simple imprisonment for three weeks passed on the Petitioner in default of payment of the fine imposed in the case was illegal and therefore must be set aside. Attention is called to the tabular statement of offences attached to Section 500 of the Act which shows that a fine of Rs. 50 only is leviable for an offence u/s 239 of the Act. There is no sentence of imprisonment provided for in the Bengal Municipal Act, not even a sentence of imprisonment in default of payment of fine. It has, therefore, been argued that that part of the learned Magistrate''s order which provides for simple imprisonment for 3 weeks in the event of failure on the part of the Petitioner to pay the fine, required to be set aside.

It is true that there is no specific provision in the Bengal Municipal Act, 1932, by which a sentence of imprisonment simple or rigorous in default of payment of fine may be imposed. But the position does not appear to me to be so helpless as that. There can be no doubt that the Bengal Municipal Act is a local Act. Section 40 of the Indian Penal Code provides that the word "''offence" as used in Section 67 of that Code denotes a thing made punishable under the Indian Penal Code or under any special or local law as therein defined. Section 42 of the Code defines ''local law'' as a law applicable only to a particular part of the territories comprised in India. Section 67 of the Indian Penal Code provides that "if the offence be punishable with fine only, the imprisonment which the Court imposes in default of payment of the fine shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not exceed the following scale, that is to say, for any term not exceeding two months when the amount of the fine shall not exceed fifty rupees, and for any term not exceeding four months when the amount shall not exceed one hundred rupees, and for any term not exceeding six months in any other case." This section, therefore, prescribes the extent of imprisonment for non-payment of fine when the offence is punishable with fine only. Thus Section 67 clearly contemplates the case of an offence not only under the Penal Code but also an offence under a local law. The Bengal General Glauses Act 1899 provides by its Section 26 that Section 63 to 70 of the Indian Penal Code and the provisions of the Code of Criminal Procedure for the time being in force in relation to the issues and the execution of warrants for the levy of fines shall apply to all fines imposed under any Bengal Act or any rule or by-law made under any Bengal Act, unless the Act, rule or by-law contains an express provision to the contrary. If we read these provisions together there cannot, in my view, be any doubt that a court trying a charge, of offence under the Bengal Municipal Act, can on conviction impose a sentence of imprisonment, in default of payment of fine. I can see no objection to the imposition of a defaulting sentence of simple imprisonment merely because the Bengal Municipal Act itself does not contain an independent provision authorising the imposition of such sentence. Section 26 of the General Clauses Act clearly attracts the provision of Section 67 of the Indian Penal Code which is the section with which I am concerned in the present case; That section of the General Clauses Act read along with Section 67 and 42 of the Indian Penal Code appears to make the position plain that a court is entitled to pass a defaulting sentence of simple imprisonment in a case under the Bengal Municipal Act. There is, therefore, no substance in this point.

The Rule is accordingly discharged.