CHATURJIBHAI NATHABHAI SECRETARY JASDAN MUNICIPALITY Vs. STATE OF GUJARAT
LAWS(GJH)-1960-12-16
HIGH COURT OF GUJARAT
Decided on December 13,1960

CHATURJIBHAI NATHABHAI, SECRETARY, JASDAN MUNICIPALITY Appellant
VERSUS
STATE Respondents


Referred Judgements :-

KHAIR MOHD. KHAN V. MT. JANNAT [REFERRED]


JUDGEMENT

P.N.BHAGWATI - (1.)The respondent is the owner of a hotel situate on the main road going from the Tower Chowk to the bus-stand near Vajsureshwar Mandir in the City of Jasdan. The respondent applied to the Jasdan Muni- pality for letting out a portion of the land in front of the hotel for raising a shed for the benefit of his customers during summer. The Jasdan Municipa- lity by a resolution dated 26/02/1959 let out a portion of the land in front of the hotel to the respondent and the respondent erected a shed on this portion of the land and kept benches there for his customers. The period for which this portion of the land was let out tn the respondent was upto 31/08/1959. After the period of the lease expired the respondent removed the shed but continued to keep the benches on the portion of the land which had been let out to him. The respondent thereafter made an application to the Jasdan Municipality for a further lease of this portion of the land for a period of one year but the application was rejected by the Jasdan Municipality. Since the respondent continued to keep the benches on this portion of the land notwithstanding the expiry of the period of the lease granted to him the Jasdan Municipality issued a notice dated 17/10/1959 against the respondent calling upon him not to keep anything on this portion of the land. The respondent however failed to comply with the directions contained in the notice and the Jasdan Municipality therefore filed a complaint against the respondent for the offence under Sec. 122 of the Bombay District Municipal Act 1901 (hereinafter referred to by us as the Act) on the ground that the respondent had kept benches on this portion of the land which formed part of the public street. It was not disputed by the respondent that this portion of the land formed part of the public street but he contended that he had not committed any offence by keeping benches on this portion of the land in front of the hotel. The case was tried by the learned Magistrate First Class Jasdan who had that inasmuch as the respondent was a tenant at sufferance or a tenant holding over after the expiration of the period of the lease granted to him by the Jasdan Municipality the respondent could not be held guilty of the offence under sec. 122 of the Act and that the only remedy available to the Jasdan Municipality was to sue the respondent in ejectment and to claim damages from the respondent for wrongful occupation. The learned Magistrate accordingly acquitted the respon- dent. Being aggrieved by this order of acquittal the Jasdan Municipality applied to this Court under sec. 17(3) of the Criminal Procedure Cede for leave to appeal against the order of acquittal and such leave was granted by this Court on 20/06/1960 and hence the present appeal before us.
(2.)Mr. Vakharia learned advocate on behalf of the Jasdan Municipality which is the appellant before us drew our attention to sec. 122(1) of the Act and contended that under that section whoever set up any encroachment or obstruction in any public street or deposited anything in such street was liable to be punished in the manner provided in that section and that it was no answer to the charge to contend that the accused was a lessee of the portion of the public street on which the encroachment or obstruction was set up or the offending thing was deposited. Mr. Vakharia contended that even if the respondent was a tenant at sufferance or a tenant holding over after the expiration of the lease in respect of the portion of the land in front of the hotel where the benches had been kept the respondent was liable to be convicted under sec. 122(1) inasmuch as the prohibition against setting up of any encroachment of obstruction or depositing of any thing in public street under that section was absolute. The argument of Mr. Vakharia was that inasmuch as the respondent admittedly continued to keep benches on the portion of the public street in front of the hotel the respondent was guilty of the offence under sec. 122(1) and the learned Magistrate was wrong in acquitting the respondent. We agree with Mr. Vakharia that the prohibition contained in sec. 122(1) is absolute and that it is no answer to a charge under sec. 122(1) that the accused is the lessee of the portion of the public street on which the encroachment or obstruction has been set up or the offending thing has been deposited. What sec. 122(1) prohibits is the setting up of an encroachment or obstruction or the depositing of any thing in any public street and there is nothing in the section which can be read as creating an exception from the rigour of the provision contained in the section in favour of any person who is a lessee of that portion of the public street. We are not concerned in the present appeal with the question whether the Municipality is entitled to let out any portion of a public street but even assuming that the Municipality can lawfully do so the lessee cannot in contravention of the terms of sec. 122(1) set up any encroachment or obstruction or deposit any thing in any portion of the public street let out to him. If a lessee cannot set up any encroachment or obstruction or deposit anything in any portion of the public street let out to him without contravening the provision contained in sec. 122(1) much less would a tenant at sufferance or a tenant holding over after the expiration of the lease be entitled to do so. The language of sec. 122(1) has enacted prohi- bition in clear and unambiguous language and the accused cannot successfully defend a charge under the section by contending that he is a lessee or a tenant at sufferance or a tenant holding over in respect of the portion of the public street on which the encroachment or obstruction has been set up or the offending thing has been deposited. This appears to us to be the plain and grammatical meaning of the provision contained in sec. 122(1). We are fortified in this construction by a reference to sub-secs. (4) and (5) of sec. 122 Sec. 122(4) permits the Municipality to allow any temporary occupation of or erection is in any public street on occasions of festivals and ceremonies or the piling of fuel in by streets and spaces for not more than four days and in such manner as not to inconvenience the public or any individual. Sec. 122(5) enacts that nothing contained in sec. 122 shall apply to any projection duly authorised under sec. 113(1) or in any case where permission has been granted under sec. 122(4). These provisions clearly indicate that apart from the cases mentioned in these provisions the Municipality has no authority in any other case to permit anyone to build or set up any encro- achment projection or obstruction or to deposit or cause to be placed or deposited any thing in any public street and if any one builds or sets up any encroachment projection or obstruction or to deposit or cause to be placed or deposited any thing in any public street and if any one builds or sets up any encroachment projection or deposits any thing in any public street the pro- hibition enacted in sec. 122(1) would be violated and even if any permission were granted by the Municipality for building or setting up such encroach- ment projection or obstruction or depositing such thing in any public street such permission would be without authority and would not take the case of such person outside the scope and ambit of sec. 122(1). It is only in cases where any projection is duly authorized * sec. 113(1) or permission is granted under sec. 122(4) that sec 122(1) would not apply and the projection encroachment obstruction or deposit would not be penal; in all other cases the encroachment projection obstruction or deposit would offend against the provisions of sec. 122(1) and attract the penalty under that section. In the present case there was no question of any projection under sec. 113(1) nor was any permission granted to the respondent under sec. 122 and it is therefore clear that the respondent cannot get out of the provisions of sec. 122(1) by pleading that he was a tenant at sufferance or a tenant holding over in respect of the portion of the public street on which he gas keeping benches. The view taken by the learned Magistrate on this part of the case is obviously erroneous.
(3.)There is however another difficulty in the way of Mr. Vakharia and it is this. The respondent has been keeping benches on the portion of the public street ever since the same was let out to him an 26/02/1959 The offence of setting up the encroachment or obstruction consti- tuted by the benches or depositing the benches on the portion of the public street was therefore committed by the respondent on 26/02/1959 The complaint in respect of the offence was filed on 28/10/1959 i. e. more than six months after the date of the commission of the offence. Now the proviso to section 161(1) of the Act provides that no prosecution for an offence under the Act shall be instituted except within six months next after the date of the commission of the offence and in view of this provision the prosecution for the offence committed by the respondent would be barred. Mr. Vakharia realising this difficulty con- tended that the offence of setting up an encroachment or obstruction or depositing any thing in a public street was a continuing offence which was committed de die in diem i. e. from day to day and that since the encroachment obstruction or deposit was continuing the offence was being committed every day and there was accordingly no question of limitation under the proviso to section 161(1). We cannot accept this argument for reasons which we shall immediately proceed to state. As we have pointed out in our judgment in Criminal Appeal No. 283 of 1960(1) in regard to section 152(1) of the Bombay Municipal Boroughs Act 1925 which is a section in the same terms as section 12(1) of the present Act section 122(1) consists of two parts each of which creates a separate and distinct offence. The first part of section 122(1) creates an offence which is completed once and for all as soon as the act of setting up an encroachment or obstruction depositing any thing in a public street is done which the second part of the section creates a continuing offence which arises by reason of the continuance of the encro- achment obstruction or deposit after the date of first conviction for the offence of setting up the encroachment or obstruction or depositing the thing in the public street. The offence under the first part of section 122 is not a continuing offence but is completed as soon as the offend- ing act is done even though the injury resulting from that act may have a continuing effect. The argument of Mr. Vakharia was that inasmuch as the injury resulting from the encroachment obstruction or deposit was a continuing injury the offence constituted by the act of setting up the encroachment or obstruction or making the deposit was a continuing offence. Mr. Vakharia relied upon a decision of the Lahore High Court reported in Khair Mohd. Khan v. Mt. Jannat (A.I.R. 1940 Lahore 359). We do not think this decision has any bearing on the question was whether an act which called upon to decide. In that case the question was whether an act which amounted to complete ouster of the plaintiffs from land reserved for common purposes between the plaintiffs and the defendants as joint owners was a continuing wrong within the meaning of section 23 of the Limitation Act. Dealing with this question it was observed by the Full Bench of the Lahore High Court which decided that case that in considering whether the particular act complained of constituted a continuing wrong within the meaning of section 23 of the Limitation Act for which the cause of action arises de die in diem it is necessary to keep in mind the distin- ction between an injury and the effects of that injury and where the injury complained of is complete on a certain date there is no conti- nuing wrong even though the damage caused by that injury might continue. That was a case of a tortious wrong. In construing what is a continuing wrong within the meaning of section 23 of the Limitation Act the Full Bench held that where the injury complained of is complete there is no continuing wrong even though the effects of that injury might continuing. We fail to see how this decision can help us at all in deciding whether the offence created under the first part of sec. 122(1) is a conti- nuing offence or is an offence which is completed once and for all as soon as the offending act is done. It is the act of setting up the encroa- ehment or obstruction or making the deposit which is made penal and that act happens once and for all and does not continue from day to day so as to result in a continuing offence. An offence is a continuing offence not by reason of the continuing effect of the injury which might be caused by the act constituting the offence but by reason of the fact that the act which constitutes the offence continues from day to day so that on each day on which the act continues there is a fresh offence committed. The offence under the second part part of sec. 122(1) is a continu- ing offence because the act of continuing the encroachment obstruction or deposit continues from day to day after the date of first conviction for the offence of setting up the same. But so far as the offence under the first part of the section is concerned it is an offence which is com- pleted once and for all as soon as the offending act is done. This being the position the period of limitation prescribed under the proviso to sec. 161 should be computed from the date when the benches were placed by the respondent for it is on that date that the respondent committed the offence of setting up the encroachment or obstruction constituted by the benches or depositing the benches in the portion of the public street in front of the hotel. If this is the correct view of the matter as we hold it is the prosecution for the offence against the respondent is clearly barred by reason of the limitative provision contained in the proviso to sec. 161(1) of the Act. The result is that the appeal fails and will be dismissed. Appeal dismissed.
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