1. These are three cases where certain persons have been convicted and sentenced, under Section 155 of the Bombay District Municipal Act, by the Third Class Magistrate of Anand, He sentenced each of them to pay a daily fine until the encroachment complained of is removed.
2. The District Magistrate has referred the cases to this Court on the ground that the sentences were illegal, as there was no previous conviction under that section, and a prospective fine is not justified without such a previous conviction, according to the view taken by this Court in Emperor v. Byramji Pudumji (No. 1) I.L.R. (1919) 43 Bom. 836 he recommends that the order for a daily fine should be converted into a sentence of substantive fine, viz., in one case (No. 20 of 1926) a fine of Rs. 50, in the other two cases the amount of a fine already recovered, i.e., Rs. 37-14 in case No. 21, and Rs. 40-2 in case No. 19.
3. We have heard Mr. Koyajee on behalf of the accused in case No. 19, and the Government Pleader for the Crown. It is quite clear that this Court, as well as the High Courts of Allahabad, Calcutta and Madras, have ruled that in cases of this kind a Court cannot sentence a person to pay a fine for a prospective offence, but can only impose a daily fine for failure or disobedience which is proved to have continued for a certain period after the date of the first conviction, or after the date of such notice or requisition as may be required by the enactment. Of course, if such an enactment clearly says that the Magistrate can fine prospectively, then that principle will not apply. But Section 155 of the Bombay District Municipal Act is as follows :-
Whoever disobeys or fails to comply with any lawful direction given by any written notice issued by a Municipality under any power conferred by this chapter, or fails to comply with the conditions subject to which any permission was given to him by the Municipality under any power as conferred, shall, if the disobedience or failure is not an offence punishable under any other section, be punished with fine which may extend to fifty rupees, and with further fine which may extend to five rupees for every day on which the said disobedience or failure continues after the date of the first conviction.
4. The last words ' after the date of the first conviction 'seem to me to show that what was really intended is that there should have been a conviction for a previous breach, and then a subsequent conviction for continuing the breach after the date of that first conviction,
5. A similar power of imposing a continuing fine, after the date of the first conviction, is contained in Section 94, Sub-section (3); s.113, Sub-section (2) ; Section 122, Sub-section (3); Section 123, Sub-section (2); Section 125, Sub-section (2); and Section 129, How these provisions came to be enacted will be clear from a comparison with the provisions of the previous District Municipal Act (Bom. Act VI of 18/3), That Act contained sections which correspond to those that I have just mentioned. In most of them no specific penalty was provided for contravention of the provisions of the section, but it was said that whoever contravened the provisions of the section '''shall be liable to the penalty hereinafter provided, ' Then came Section 74, Clause (1) of which prescribed that certain fines, such as Us, 25, Rs, 50 and Rs. 100, could be imposed for an offence under the specific sections mentioned. Then Clause (i) lays down :- ' Any person who after conviction or notice, as the case may be, continues the offences referred to in the sections of this Act hereinafter enumerated shall, in addition to any penal by which may have been imposed, be liable for each day of such continuance to the penalties herein preseribed with reference to such sections respectively.'
6. Then a limit of fine is prescribed, viz,, for certain sections one of Rs. 5, for others Rs. 10, and in the case of one section Rs. 30. That clause clearly implies that the additional penalty was to be imposed only after the conviction or notice, and when it had been found that the disobedience continued, That would, of course, entail a subsequent prosecution.
7. The Act of 1901 is mainly based on the provisions of the old Act of 1873, and there is a presumption that, in the absence of clear words to the contrary, the legislature intended a similar policy. The case is analogous to that of Section 138, Sub-section (2), which says that the offender shall be punished with fine which may extend to Rs. 50, and upon any subsequent conviction to Rs. 500. That follows the corresponding provisions of Section 65 of the Act of 1873, Therefore, in my opinion, there are grounds for holding that the view taken by this Court in Emperor v. Byramji Pudumji (No. 1) (1919) I.L.R. 43 Bom. 836, s.c. 21 Bom. L.R. 759 and In re Limbaji Tulsiram (1896) I.L.R. 22 Bom. 766 applies to a case under Section 155 of the Bombay District Municipal Act, Accordingly, we agree with the District Magistrate that the sentences of fine imposed in these cases were illegal. We think the best course is to substitute in each case a fine of Rs. 50, against which will be credited the amount of any fine already recovered. The sentence of ten days' simple imprisonment in default will remain.