Sarjoo Prosad, C.J.
1. This is a reference under Section 438 of the Criminal Procedure Code for setting aside an order of conviction dated 22-8-1953, in Criminal Case No. 516 of 1952 (the Chairman, Municipality Goal-para versus Harendra Narayan Das), convicting the accused in that case under Section 152 of the Assam Municipal Act & sentencing him to pay a fine of Rs. 25/-, in default, to suffer simple imprisonment for 30 days.
2. The relevant facts giving rise to the reference are these: The accused petitioner at whose Instance this reference has been made holds & plot of land within the Municipal area of the Goalpara town. The allegation against him is that he encroached upon some portion of the Municipal drain that runs along-side his homestead land.
The encroachment is said to have been detected by the Municipal Overseer on 17-2-1952 and he wanted the encroachment caused by the erection of the fencing to be removed amicably, but the accused refused to do so. He then submitted a report on 19-2-1952 in writing to the Chairman of the Municipal Board in regard to the encroachment in question.
The then Chairman ordered prosecution of the petitioner on 22-2-1952. It appears, however, that no action was taken immediately thereafter, until 2-7-1952 when the present Chairman of the Municipal Board sent a written complaint to the Sub-Divisional Officer of Goalpara stating the above fact of encroachment upon the road & roadside drain by erecting a fencing & asking for prosecution of the accused for his failure to remove the same in spite of repeated requests of the Municipality.
The Magistrate then took cognizance of the case and ordered issue of summons on the petitioner. The petitioner appeared and pleaded not guilty to the charge. Evidence was given both On behalf of the prosecution as also on behalf of the defence. On the evidence recorded the Magistrate found the petitioner guilty under Section 152 of the Assam Municipal Act and convicted and sentenced him as stated above.
3. The recommendation for setting aside the order has been made by the learned Additional Sessions Judge mainly on two grounds. The first is that the petition of complaint did not disclose the date on which the encroachment was made. It is contended that this was necessary in view of the fact that the prosecution was actually instituted on the complaint of the Chairman on. 2-7-1952; as such, it was much beyond six months from the date of the encroachment, if any, and no prosecution could therefore be started against the Petitioner.
The second ground is that the Chairman had himself no authority to file a complaint for the prosecution of the petitioner without the order or consent of the Board. It is urged that the prosecution therefore is without jurisdiction in view of the mandatory provisions of Section 318 of the Assam Municipal Act (Act I of 1923).
4. The provisions of Section 318 are very material for the decision of the case. It is therefore better to reproduce the same. The section runs thus:
No prosecution for an offence under this Act or any bye-law made in pursuance thereof shall be instituted without the order or consent of the Board, and no such prosecution shall be instituted except within six months next 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 of the Board:
Provided that the failure to take out any licence under this Act shall be deemed to be a continuing offence until the expiration of the period for which such license is required to be taken out.
5. I shall take up the first contention of the learned Counsel appearing in support of toe reference; namely, whether the prosecution instituted in this case was beyond six months from the relevant date as provided by Section 318 of the Act Quoted above. The accused has been convicted under Section 152 of the Municipal Act, which provides for punishment for encroachment without the permission of the Board, upon any road or house-gully or upon any public drain by erecting any wall, fencing etc.
The finding is that the petitioner erected a compound fencing encroaching upon the road and the road-side drain without the permission of the Board. It is urged that the offence of encroachment, if any, was complete as soon as the erection of the fencing had been completed and neither the Municipal Overseer's report made on 19-2-1952, nor the written complaint of the Municipal Chairman dated 2-7-1952 discloses as to when this was actually done.
There is nothing on the record to suggest that the offence of encroachment was committed on the particular date on which the Municipal Overseer came to notice the fencing in question. It was, therefore, necessary for the prosecution to prove when this encroachment took place and that it took place within six months from the date of the offence, failing which no prosecution could be lodged against the petitioner.
If the case falls within the first part of Section 318, namely, that the offence was complete as soon as the fencing had been erected, there is much force in the contention of the petitioner that he could not be prosecuted unless it was disclosed that the erection in question was within six months from the date of the prosecution, in proof of which there was no material on the record.
If, however, it is found that the offence was continuous in its nature, then as provided by the section, prosecution could be launched within six months of the date on which the commission or the existence of the offence was first brought to the notice of the Chairman. In this case the offence was brought to the notice of the Chairman on 22-2-1952 and the prosecution was launched on 2-7-1952 which would be well within six months.
Therefore, the primary question which has to be considered in this connection is whether the offence was continuous in its nature, or in other words whether it fell under the second part of Section 318 of the Municipal Act. The letter of reference seems to assume that the offence in the present case fell within the first part of Section 318, in other words that the offence was complete with the erection of the fencing in question.
It is, however, contended by Mr. K. Lahiri, on behalf of the Municipality that the view taken by the learned Additional Sessions Judge in the letter of reference is erroneous, because on his submission the offence in the present case is of a continuous nature. The point is not free from difficulty and there are conflicting views expressed in some of the decisions cited at the Bar; but having examined the matter carefully, I am in-dined to think in the circumstances of the present case that the offence was continuous in its nature.
It is true that in most cases where the encroachment is by an act such as the building of a wall, the encroachment is over and done, once the erection of the wall has been completed. But whether the wrong is continuing or not must depend upon the nature of the wrong itself. Trespass, encroachment or obstruction in some I cases may be a continuing wrong and in some' cases they may not be so.
If trespass or obstruction is continued by the wrong-doer in that sense that it is not abandoned, the wrong continues. The erection of a fencing, wall or building on somebody else's land whether the owner of the land is a private individual or a public body is an act of encroachment and dispossession by itself and may give rise to a cause of action. In certain instances it may even constitute an offence as soon as the erection is complete.
But there may be cases where the construction in question is not a mere act of dispossession or encroachment, but has also the effect Of causing certain other injuries of a continuous nature such as for instance the obstruction of as passage of water, of a right of egress and ingress or other obstruction of light and air which amount to nuisance.
In such cases although the encroachment may be complete by the erection in question the further fact of the causing and existence of the nuisance which accompanies the act of dispossession and encroachment is in the nature of a continuing wrong. It is for such cases that Section 23 of the Limitation Act gives rise to a continuous and fresh period of limitation. Section 23 runs as follows:
In the case of a continuing breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues.
But then it may well be asked whether in all such cases there is a perpetual right to sue under Section 23 of the Act. The answer to the question would be clearly in the negative where by lapse of time the trespasser himself acquires certain indefeasible rights, or where the right of the person affected by the act, is extinguished under Section 28 of the Limitation Act.
For instance, where the wrong amounts to dispossession of a person, then although it may be a continuing wrong, the plaintiff cannot recover possession after 12 years because under Section 28 of the Limitation Act he himself has got no right left which he can enforce. Where the plaintiff is Government or is representing Government, the period will be sixty years under Article 149 of the Limitation Act.
Where the plaintiff is a local authority suing in regard to a public road, the period will be thirty years under Article 146a of the Limitation Act. All this would be quite in accord with the doctrine that obstruction of a public or village path or municipal drain is a continuing wrong just so long as the wrong-doer has not himself acquired a right which renders his action no longer a wrong.
We find an elaborate and illuminating discussion of the point in a decision by Meredith J., to which Pazl Ali J., agreed in Bibhuti Narayan Singh v. Mahadev Asram ILR 19 Pat 208 : A.I.R. 1940 Pat 449 (A). The learned Counsel for the Municipal Chairman has also relied on another decision of the same Court in Akhauri Haliwant v. Deo Narain A.I.R.1941 Pat 181 : ILR 19 Pat, 88$ (B), which illustrates the above principles.
In the latter case the owner of a plot of land which was recorded as gairmazrua-am and ahar or water reservoir had been completely dispossessed by the erection of a chabutra or concrete platform built on that land by another person; the suit by the owner for possession brought more than 12 years thereafter was held to be barred.
It was held that the owner's title to the portion encroached upon and built over was extinguished at the end of 12 years, the period for instituting a suit for possession of the land; and the extinction of the owner's title operated to give a good title to the wrongdoer. These cases indicate that although the injury in certain cases may be in the nature of a continuous wrong, yet if it is as a result of an act of complete dispossession, then the right to sue for removal of the injury may lapse after a certain period.
Nevertheless, so long as the right to removal of the injury is not destroyed, the wrong continues to subsist and it is in the nature of a continuing wrong. The interference with the right to flow drain water is in the nature of a continuing wrong, vide: Rajrup Koer v Abdul Hossein ILR 6 Cal 394 : 7 Ind App 240 (PC) (C). The existence of the fencing in this case, from day to day constitutes an obstruction to the drain and the public road and is in the nature of a continuing nuisance.
It may be that on account of the erection of the wall having been completed over that portion of the Municipal land, the Municipality may, after the lapse of a period of 30 years, lose the right to sue for the land itself and thus for removal of the obstruction; but so far as the application of Section 318 of the Municipal Act is concerned, it appears to me that the offence committed in this case is in the nature of a continuing wrong and therefore the prosecution which was lodged well within six months of the date on which it was brought to the notice of the Chairman of the Board is well within time.
The judgment of Agarwala J., as he then was in Gopal Lai Tatak v. Commissioners of Gaya Municipality 48 Cri LJ 609 (Pat1) (D), is clearly apposite. The case was decided under Section 375 of the Bihar and Orissa Municipal Act which substantially corresponds with S, 318 of the Assam Municipal Act. For the petitioner reliance has been placed upon a decision in Rajkumar Ram v. Chairman, Sasaram Municipality : AIR1950Pat510 . The case is quite distinguishable.
In that case the conviction was based on the only finding that the privy was made without the sanction of the municipality and the making of the privy by itself could not be a continuing offence, as the offence, if any, was completed as soon as the privy had been constructed. The other decision cited by the learned Counsel for the petitioner in State v. A. H. Bhiwandiwalla : (1956)IILLJ153Bom , does not help the petitioner.
The facts in that case were different. In that case the accused who was occupier of a salt factory which had been in existence prior to the commencement of the Factories Act, 1948, was called upon to comply with the requirements of the Factories Act by the Inspector of Factories when he visited the factory on 10-3-1952. On a second visit by the Inspector On 23-5-1953 it was found that the accused had taken no steps to comply with the requisition.
The accused was thereupon prosecuted within three months from 20-5-1053 but beyond three months from 10-3-1952 under Section 92, Factories Act for having failed to apply for registration of the factory and grant of licence and also for failing to give a written notice of occupation as required by the Factories Act and the rules made thereunder. It was held in this case that the failure of the accused to apply for registration and to give a notice of occupation was not a continuing offence and therefore the prosecution in respect thereof filed more than three months after was barred by limitation under Section 108; but the conduct of the accused in using the premises as a factory without obtaining a license constituted a, continuing offence, and therefore, no bar of limitation under Section 106 could be pleaded in respect of this charge.
The word 'continuing offence' was sought to be explained in that decision. It was pointed out that the expression had a well-recognized meaning in criminal law. If an act committed by an accused person constitutes an offence and if that act continues from day to day, then from day to day a fresh offence is committed by the accused so long as the act continues. Normally and in the ordinary course an offence is committed only once. But there may be offences which; can be committed from day to day and it is described as continuing offences.
With these observations I respectfully agree and applying the test I have no hesitation in coming to the conclusion that the offence in this case in causing obstruction to the passage of the water in the drain by erecting the fencing in question constitutes a continuing offence. The first ground, therefore, on which this reference is pressed, in my opinion, fails and must be rejected.
6. The second contention also does not bear scrutiny, if the provisions of Section 318 are examined in the light of Section 29 of the Municipal Act. As we have already seen Section 318 of the Act does lay down that no prosecution for an offence under this Act or any bye-law made in pursuance thereof shall be instituted without the order or consent of the Board. Order or consent of the Board is not the same thing as order or consent at a meeting thereof.
The proviso to Section 29 (1) itself makes a distinction between the functioning of the Board as such and the functioning of the Board at a meeting. It is to be noticed that for the transaction of business under the Municipal Act or for the purpose of making any order thereunder, the Chairman of the Board is authorised by virtue of. Section 29 (1) to exercise all the powers vested by the Act in the Board itself.
Directing prosecution or filing complaint for such prosecution is an act or transaction under the Municipal Act itself. Therefore, under the law the said act or transaction could be performed by the Chairman of the Board. This inference is further strengthened by a perusal of Section 317 as well, which authorises the Board to direct any prosecution for any public nuisance or order proceedings to be taken for the recovery of any penalties under the Act & for the punishment of any persons offending against the provisions of the. Act.
The Chairman could certainly perform' these acts and make these orders just in the same manner as the Board could, except where according to the proviso to Section 29 (1) the 'Board at a meeting ordered to the contrary. There is no such case here. The Chairman therefore could I order prosecution toy asking the Overseer to lodge I a complaint or could himself lodge a complaint in I the matter.
In either case the action of the Chairman would be well within the authority of the law. The learned Additional Sessions Judge appears to have laid great emphasis mainly on the proviso to Section 29 (1) which obviously has no application to this case. It is true that the Chairman has not been given unfettered or unlimited power. Under the statute he enjoys the powers of the Board, as its delegate. But if that Board has, at a meeting, taken away the power in regard to certain matters, it is only then that the Chairman cannot act in contravention thereof.
Otherwise, his powers are concurrent with that Of the Board itself for the purpose of making any order or carrying on transactions under the Act. The decision of Agarwal J., as he then was, in the case cited earlier is in line with my own interpretation of the section.
7. Both the points in support of the reference therefore fail. It must be held that the Chairman had due authority to lodge the complaint and that the complaint was well Within the period of limitation from the date when the matter came to his notice. There are no other points urged before us. The conviction of the accused under Section 152 of the Municipal Act and the sentence passed thereunder must therefore be afirmed. The reference is accordingly discharged.
8. Before we conclude our Judgment, we would like to say a few words about the remarks of the learned Magistrate against the lawyer who appeared for the accused in that case. The Procedure followed by the lawyer concerned in submitting a written argument at the eleventh hour may not have been altogether regular and the Court may have rejected the same and refused to take it into account but it had no justification for questioning the bona fides of the lawyer concerned or to make any unwarranted remarks against him. It is wrong to assume that the said act necessarily cast any reflection upon the lawyer or that it was an undesirable back-door practice, contrary to professional etiquette or dignity. The offensive remarks in our opinion are quite out of place and must be expunged from the record.
Ram Labhaya, J.
9. I agree.