Pavayammal and Another vs The District Board

Happell, J.—The Salem District Board was entrusted with the management of a choultry and the property with which the choultry was

endowed. On the ground that the petitioners had unauthorisedly occupied a portion of the property attached to the choultry, the District Board

served them with a notice to vacate and then prosecuted them u/s 164(2) read with Section 207(1) of the Madras Local Boards Act on the

ground that they had failed to vacate the land in contravention of the notice served on them. The petitioners were convicted on 11th March, 1944,

but still did not vacate the property and some six months later, on 2nd September, 1944, the District Board prosecuted them u/s 207, Sub-section

(2) of the Act. It appears that there is a civil suit pending between the District Board and the petitioners in regard to the title to the property in

question but this suit was filed after the conviction in the first case, and an undertaking which the Board seems to have given not to evict the

petitioners during the pendency of the suit was admittedly given after the accused had been convicted in the case out of which this petition arises.

The civil proceedings are therefore not material.

Section 207, Sub-section (2) provides that, if a person after conviction continues to contravene the provision of the Act in respect of which he

has been convicted or to neglect to comply with the direction or requisition, he shall on conviction be punished, for each day after the previous date

of conviction during which he continues so to offend, with fine which may extend to the amount mentioned in the fourth column of the schedule. It is

not disputed that the petitioners, after their conviction for the contravention of the notice requiring them to vacate, have continued in possession of

the property. Section 223 of the Local Boards Act, however, provides that, no person shall be tried for any offence against the provisions of the

Act unless complaint is made within three months of the commission of the offence.. in the present case the complaint was filed nearly six months

after the conviction and so more than five months have elapsed, at any rate, from the commencement of the offence. The contention advanced for

the petitioners is that the complaint against them is barred by limitation by virtue of the provisions of Section 223 of the Act. There is a proviso to

Section 223 by virtue of which a different period of limitation is prescribed for complaints based on failure to take out a licence or obtain

permission under the Act. Such failure is deemed to be a continuing offence,

until the expiration of the period, if any, for which the licence or permission is required, and, if no period is specified, complaint may be made at

any time within twelve months from the commencement of the offence.

It is argued for the District Board--an argument that was accepted by the Magistrate --as against the contention that the complaint was barred by

limitation because it was brought more than three months after the conviction, that the present case falls within the scope of the proviso as an

encroachment can be validated with the permission of the District Board. On the basis of this contention, it is argued that, as no period is specified

for the permission, it was open to the Board to make the complaint any time within 12 months of the commencement of the offence, that is, the

date of the conviction. This contention, in my opinion, has no substance. The petitioners were prosecuted for failing to vacate the property in spite

of the fact that a notice u/s 164, Sub-section (2) of the Act had been served on them. There was no question of a prosecution for failure to obtain

permission for the encroachment and indeed it is clear no question of permission for the encroachment has ever arisen.

The other argument advanced as against the contention that the complaint was barred by limitation has more substance. As Section 207, Sub-

section (2), provides that a person who continues in occupation after a conviction based on his failure to vacate in response to a notice to do so

shall be punished with fine which may extend to the amount mentioned in the appropriate schedule for each day after the previous date of

conviction during which he continues to offend by remaining in possession, the offence committed is a continuing offence ; and it is argued that the

starting point of limitation will not be the date of the conviction but the last day on which the offence is committed. As against this contention,

learned Counsel for the petitioners has referred me to a decision of the Bombay High Court in Bechardas v. Emperor AIR 1930 Bom. 340. In that

case which was under the Bombay City Municipalities Act, one of the questions that arose was whether the starting point of limitation in respect of

a continuing offence was the commencement of the offence or whether a fresh cause of action arose every day. The learned Judges held that the

starting point was the commencement of the offence, i.e., when the offence was first committed. The decision seems to have been made, as the

judgment of Broomfield, J., shows, not so much on the basis of principle or authority as on grounds of convenience. In the absence of any clear

authority it was thought unreasonable for a local body to be permitted to prosecute for failure to remove a building perhaps years after the offence

was committed on the ground that the offence was a continuing offence. With respect I am unable to take this view. Section 223 provides that the

complaint must be made within three months of the commission of the offence, and if an offence is a continuing offence, the offence goes on being

committed every day. Inconveniences may arise, but it is not difficult for the Legis ature to provide against them. In the case cited by Broomfield,

J., for instance, Welsh & Son v. West Ham Corporation (1900) 1 Q.B. 324 it was provided that a penalty should not be incurred after the

expiration of one year from the day when the offence was committed or when the law was broken. Moreover in the proviso to Section 223 of the

Madras Local Boards Act, failure to take out a licence or obtain permission under the Act is deemed to be a continuing offence only until the

expiration of the period for which the licence or permission is required so that if a period is specified, a complaint would presumably have to be

filed within three months of the date of expiration of the licence or permission. If, on the other hand, no period is specified for the licence or

permission it is provided that a complaint may be made at any time within twelve months from the "" commencement of the offence."" The limitation

of the period for which an offence shall be deemed to continue and the use of the words ""from the commencement of the offence"" instead of ""the

commission of the offence"" indicate that the starting point of limitation for a continuing offence will be the last date on which the offence is

committed unless specific provision is made to a contrary effect.

I agree, therefore, with the view taken by the Magistrate that the complaint is not barred by limitation, although for different reasons. As far as

the first accused is concerned, the petition is dismissed, and the Magistrate will dispose of the case against him in accordance with law. In the

petition Criminal Revision Case No. 776 of 1944 against the conviction of both the accused in C.C. No. 2027 of 1943 I allowed the petition of

the second accused on the ground that she was not in occupation of the property. That being so, the present complaint cannot be maintained as

against her. As far as she is concerned her petition is allowed and she is discharged.