Skip to content


Municipal Commissioners of Raniganj Vs. Kedar Kalwar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. Case No. 1199 of 1952
Judge
Reported inAIR1954Cal27,57CWN704
ActsBengal Municipal Act, 1932 - Sections 240(1), 500 and 533; ;Crimianl Procedure Code , 1898 - Section 439
AppellantMunicipal Commissioners of Raniganj
RespondentKedar Kalwar
Appellant AdvocateS.C. Majumdar and ;Sudhir Chandra Mazumdar, Advs.
Respondent AdvocateN.K. Basu, ;Jagdish Chandra Ghose and ;Satyapriya, Advs.
Excerpt:
- .....an order of sri n. chakravarty-sessions judge, burdwan, setting aside tha conviction of the opposite party kedar kalwar under section 240(1)(b) read with section 500, bengal municipal act, 1932 and acquitting him of that charge. the prosecution was started by the raniganj municipality on the allegation that the opposite party kedar kalwar had encroached upon a portion of a public street known as 'kalitala lane' in c. s. plot no. 904 of raniganj municipality by constructing a corrugated iron shed thereon used as a cowshed; that the municipality served a notice on 23-6-1950 calling upon the opposite party to remove the shed within three days and that the opposite party failed to comply with the notice and so committed the offence under section 240(1) (b) read with section 500,.....
Judgment:

Sen, J.

1. This revisional application is directed aeainst an order of Sri N. Chakravarty-Sessions Judge, Burdwan, setting aside tha conviction of the opposite party Kedar Kalwar under Section 240(1)(b) read with Section 500, Bengal Municipal Act, 1932 and acquitting him of that charge. The prosecution was started by the Raniganj Municipality on the allegation that the opposite party Kedar Kalwar had encroached upon a portion of a public street known as 'Kalitala Lane' in C. S. Plot No. 904 of Raniganj Municipality by constructing a corrugated iron shed thereon used as a cowshed; that the Municipality served a notice on 23-6-1950 calling upon the opposite party to remove the shed within three days and that the opposite party failed to comply with the notice and so committed the offence under Section 240(1) (b) read with Section 500, Bengal Municipal Act, 1932.

The complaint was filed in Court on. 23-6-1950 although it appears that the learned Magistrate passed an order for issuing the process only on 28-2-1951. The learned Magistrate convicted the opposite party Kedar Kalwar and sentenced him to pay a fine of Rs. 50/- in default, to suffer simple imprisonment for three weeks and to pay a daily fine of Rs. 10/- so long as he did not remove the encroachment.

2. In appeal the learned Sessions Judge held that the complaint was barred by Section 533, Bengal municipal Act, 1932, because accoridng to the fincing of the learned Sessions Juuge the cow-shed had been erected in the first week of June, 1950 and the case had been in-stituted more than 6 months thereafter, namely on 23-12-1950.

3. In this revisional application Mr. Majum-dar urges on behalf of the Raniganj Municipality that the learned Judge was wrong in his decision on the question of limitation under Section 533, Bengal Municipal Act, 1932, because the starting point of the limitation shculd be held to be the date of failing to comply with the requisition served by the Municipality under Section 240(1)(b), Bengal Municipal Act and not from the date of erection of the hut which was alleged to be an en roachfr.ent on the public street of the Municipality.

Section 500(1), Bengal Municipal Act, 1932 runs as follows :

'Whoever commits any offence by --

(a) contravening any provision of any of the sections, sub-sections, clauses of sections or provisos of this Act mentioned in tne first column of the following table, or

(b) failing to comply with any direction lawfully given to him or any requisition lawfully made upon him under any of the said sections, sub-sections, clauses or provisos shall be punished with fine which may extend to trie amount mentioned in that b~-half in the third column of the said table.'

Section 240(1)(b) of the Act provides that the Commissioner of a Municipality may issue a notice requiring any person to remove any wall, hoarding, scadolding, obstruction or en-croachnment which he may have erected or set up in, over, above, or upon any public street, sewer, drain, aqueduct etc. belonging to the Municipality . The Schedule under Section 500 of the Act refers to requisition to remove wall, hoarding etc. over any public street, drain etc. It is therefore clear that the offence complained of is the offence committed by failing to comply with the requisit:on to remove obstruction served under Section 240(1)(b) of the Act. Therefore, the starting point of the offence is the date on which there was such failure to comply with the requisition and not the date on which the hut or the obstruction was erected.

In this case according to the petitioner Muni-cinality, requisition was served on 23-6-1950 and three days' time was given to remove the obstruction. Accordingly, the opposite party would have time un to the 26th June to remove the obstruction and he committed the offence bv failing to comply with the requisition on 27-6-1950. Therefore, the starting point of the offence on the Municipality's case would be 27-6-1950 and therefore under Section 533 the complaint could be legally filed on 21-12-1950 which would be within six months from the date of the commission of the offence.

4. It appears, however, on a reference to the requisition Ex. 3 which was actually serv-ed on the opposite party that the requisition was defective. The requisition was issued in a printed form of notice of which the first sentence runs as follows :

'Please take notice that you are hereby required within 3 (three) days/hours from thedate/nours of service hereof to remove theenforcement made by (sic) in erecting a C.1. shed for keeping does over (sic) No.904 named as (sic) Lane measuring 29'x 9'.'

In the above form of notice both the words 'days' and 'hours' occurring after '3' have been penned through so that xne receiver of the notice or requisition would not Know within what perior he was actually directed to re-move tne (sic) The notice must, therefore, be considered delective. Even if we accept the contention of Mr. Majumdar that the Municipality mean, these days, we must hold that the there given was too short. The shed measured 29' x 9' and had been standing there for some lime and a reasonable time (sic) to have been given in the requisition for removal of the same, in the circumstances, the notice being defective, it cannon be held that there was an offence committed by failing to comply with the same.

5. There is a further obstacle in the way of the petitioner that the revisional application was filed long after the usual period of 60 days within which a revisional application is to be filed. The order of the learned Sessions Judg? setting aside the conviction of the opposite party and acquitting the opposite party was passed on 10-3-1952. The revisional application was, however, filed on 25-11-1952, that is, more than 8 months after the order of the learned Sessions Judge. The reasons given for such delay in paras 13, 14 and 15 of the revisioral application do not appear to be sufficient. Paragraph 13 stages that in the first part of May, 1952, the Municipality was advised that there might be no relief bv applying to the High Court against an order of acquittal.

In para 14 it is stated that in view of the seriousness of the situation created by the judgment of the learned Seesions Judge the Muni-cipality consulted competent legal opinion and about the middle of July the Municipality got opinion from Calcutta that a revisional appli-cation ought to be filed in the hiGH Court. Even thereafter however the Municipality was not sufficiently prompt. In para 15 it is stated that after, receiving the legal opinion from Calcutta the Vice Chairman on behalf of the Municipality directed by the the end of July 1950 that motion be filed in the High Court. Even thereafter there was four months delay. It Is clear that such long delay in filing the revi-sional application for insufficient reasons can-not be condoned.

6. This revisional application, therefore, fails and the Rule is discharged.

Mitter, J.

7. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //