Chandrachud, C. J. - (1.) 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 the 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 S. 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 S. 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 the six month"s period of six months began to run than on how the 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.
(2.) 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 S. 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.
(3.) 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 for the present purposes, it will be impossible to resolve the question as to whether the prosecution is barred by limitation. Sec. 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 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 of encroachment but in "failing to comply with any direction lawfully given" to a person or "any requisition lawfully made upon him".;