M.L. Jain, J.
(1) This order will dispose of nine revision petitions (Cr Revisions Nos. 193, 194, 195, 196, 197, 198, 199, 200 and 201 of 1977).
(2) The accused Narain Dutt Jhamb applied to the Delhi Municipal Corporation for sanction for construction of a Cinema house on his plot in Shahdara. He alleged that he got the requisite sanction but the Corporation later on disclaimed its sanction. He filed a writ petition No. 668D/63 in this Court and obtained a writ from a Single Judge on December 15, 1972. The Corporation has filed an L. P. A. No. 63/73 against the writ which is still pending. He then constituted a partnership firm for running the Cinema in the name of M/s. N. D. Jhamb and co. on December 26, 1972. The partners are N. D. Jhamb and two women who are perhaps his daughters-in-law. The construction appears to have begun on April 21, 1973. After he completed the construction, he applied on September 15, 1975 for a completion certificate as required by Section 346 of the Delhi Municipal Corporation Act, 1957 (hereinafter the Act) and byelaw No. 14 of the Delhi Municipal Corporation (Buildings) Byelaws, 1959. But the Corporation in its letter of October 4, 1975, refused to grant the certificate because (1) C&D; forms not submitted. (2) Building occupied before obtaining completion certificate. (3) The case is sub-judice and Lpa is pending in the court.
(3) The petitioner obtained permission for running the Cinema from various authorities concerned and began to use the building. Thereupon the Corporation filed twenty three complaints against him for occupation and use of the building without the requisite permission on several dates in breach of Section 346(2) of the Act. The first one is dated December 31, 1975 and the last one is dated March 8, 1976. These were consolidated into nine cases. In each one of them, he was convicted u/s 461 of the Act and sentenced to pay a fine of Rs. 150.00 , in default whereof to simple imprisonment for three clays. Hence the following revisions :
___________________________________________________________________ S. Car Rev. No. Lower court Case No. Date of offence No. ___________________________________________________________________ 1. 193/77 2017/SH/76,2018/SH/76, 18.2.76,20.2.76,23.2.76 2019/SH/76 (Cr. C.218/76) 2. 194/77 2011/SH/76,2012/SH/76& 4.2.76,6.2.76 & 9.276. 2013/SH/76 (C.C.219/76) 3. 195/77 90/76 23.1.76 4. 196/77 96, 97, 99 of 1976 2.1.76, 15.1.76, & 5.1.76 5. 197/77 87,88,95/76 20.1,76,29.1.76 & 12.1.76 6. 198/77 89,100,101/76 2.3.76. 17.1.76 & 31.12.75 7. 199/77 2014/SH/76,2015/SH/76 11.2.76,13.2.76 & 16.2.76 2016/SH/76(Cr.C.220/76) 8. 200/77 98/76 27.1.76 9. 201/77 2020/SH/76, 2921/SH/76 25.2.76,27.2.76 & 8.3.76 2022/SH/76 (Cr.C. 221/76) ___________________________________________________________________
(4) I have heard the arguments and seen the record. The contentions which have been urged here are largely those which were raised before the learned Magistrate. But what is immediately noticeable is an illegality that the learned Magistrate has committed in these cases except in Case Nos. 90 and 98 above. He awarded ons sentence for three offences which are alleged to have been committed on three different dates as the consolidation of the complaints purport to indicate. I would have remanded the cases for retrial but I do not think that that would be a correct course to adopt in tiic circumstances that have been disclosed in the matter.
(5) The learned counsel for the accused pointed out that the offence of occupation and use of the building without permission u/s 346(2) has been committed by the partnership firm and since the firm has not been prosecuted, he too cannot be prosecuted. This argument is not of any merit because according to Section 466, every partner who is in charge of and responsible to the firm for the comduct of its business is as much liable as the firm for any. offenee committed by the firm. I have elaborately discussed this point in my . judgment reported in Ram Kumar v. State & Mcd 1979 (2) Fac 56. Moreover, the learned Magistrate has found that the plan was sanctioned in the name of the accused, that it was he who applied for issue of a completion certificate and that the firm is not the owner of the building. That clinches the issue. I reject this contention.
(6) The next question is whether the prosecutions are barred by time u/s 471 of the. Act which provides that no person shall be liable to pumishnient under the Act unless the complaint is made within six mouths of the date of commission of the offence or of the date on which the commission or existence of such offence was first brought to the notice of the complaint. The accused has not disclosed the date of the occupation or the use of the building. thereforee, it is not possible to disbelieve that the offence was committed on December 31, 1975 or at least came to the notice of the Corporation on that date. The application for completion certificate was made on' September 15, 1975 and thereforee, the building must have been occupied on or after that date. The first complaint was tiled on December 31, 1975 which is within six months next after the commisstion of the offence or within six months of the knowledge thereof. Subsequent offences have been trered as continuing contraventuns. There is also no evidence to support the contention that the building was occupied in March, 1975. I thereforee, reject the argument that the complaints were barred by time.
(7) Now, we have to consider whether the offence is a continuing one and if so, what is the punishment awardable in such cases Section 346(2) is as follows :
'NOperson shall occupy or permit to be occupied any such building or use or permit to be used any building or a part thereof effected by any such work until per mission has been granted by the Commissioner in this behalf in accordance with bye-laws made under this Act : Provided that if the Commissioner fails within a period of thirty days after the receipt of the notice of completion to communicate his refusal to grant such permission, such permission shall be deemed to have been granted.'
(8) These words appear to me to indicate that occupation is not a continued contravention because the act is complete as soon- as occuption takes place. But the continued use of the building is certainly a continuing contravention because it is susceptible of continuance and is distinguishable from the one which is committed once and for all. It arises out of a failure to obey or comply with a rule or its requirement and involves a penalty, the' liability for which continues until the rule or its requirement is obeyed or complied with. The learned Magistrate was of the same view that breach or Section 346 is a continuing offence and yet he failed to give effect to the provisions of Section 461(ii) under which a person in case of continuing contravention is punishable with an additional fine not exceeding the amount specified in the Table inthe Twelveth Schedule. Thus the petitioner is liable to pay Rs. 150 for the first conviction and thereafter to a daily fine which may extend to R.S. 10 per day. I should have modified the sentences accordingly but for the argument that no offence was committed by the accused, which I think I should uphold. The bye-law 14 and the form of the completion certificate show that the Commissioner shall, within a period of 30 days after receipt of the notice of completion, communicate the requisite permission to occupy or use the building. Such permission can be refused if the building does not conform in all respects to the requirements of the Building Bye-laws in respect of structural safety, fire safety, hygienic and sanitary conditions inside and in the surroundings and is not fit for occupation. The Corporation while conveying its refusal did not say so. Instead, it refused to give its permission because the building was occupied without sanction and that they had filed an appeal against the judgment of the Single Judge. That shows unmistakably that the sanction was refused for considerations which were not relevant under the Act and the relevant bye-laws. The Corporation cannot withhold sanction for irrelevant reasons and yet claim the right to prosecute the owner or the occupier or the user of the buiding.
(9) I thereforee, accept these revisions, set aside the convictions and sentences and acquit the accused of the charges in all the cases filed against him.