1. On 16th December 1940, at the instance of Mr. N. N. Bose, the Survey Overseer of the Howrah Municipality, this Court granted a rule nisi upon the District Magistrate of Howrah and upon she Manager of the Kedar Nath Jute ., the opposite party, to show cause why an order made by the District Magistrate of Howrah should not be at aside or such other or further order or orders made as to this Court might seem fit and proper.
2. The case arises under the provisions of the Calcutta Municipal Act, 1923, as extended to the Municipality of Howrah with certain modifications and restrictions. The Act was applied as from 1st April 1933, by the Howrah Municipal (Temporary Provisions) Act of 1933. In the year 1917, a survey map of the Municipality of Howrah was published by the Government of Bengal and on that map is shown a longitudinal space marked Dhurrumtollah Road. From the map it will appear, though it is not conclusive, that Dhurrumtollah Road is a public road. Section 295 (1), Howrah Act, I have referred to above, provides:
All public streets and squares (not being the property and kept under the control of the Government or the Commissioners for the Port of Calcutta), including the soil, sub-soil, and the road-drains, footways, pavements, stones and other materials of such streets and squares, and all erections, materials, implements and other things provided for such treets or squares shall vest in and belong to the Commissioners.
3. Section 300 of the same Act provides:
(1) The Commissioners may, after giving notice to him, require any person to remove any wall and may of their own motion remove any fence, rail, post, platform, or other obstruction, projection or encroachment (not being a portion of a building or fixture referred to in Section 299) which has been erected or set up and any materials or goods which have been deposited in a public street or in or over any drain or aqueduct in a public street, whether the offender be prosecuted under these provisions or not; and the offender shall be liable for the payment of the expense of such removal.
(2) When under Sub-section (1), the Commissioners cause any wall to be removed or remove any other obstruction, projection or encroachment from land which forms part of a public street, no compensation shall be payable, but the Commissioners shall be bound to provide proper means of access to and from the street if none exists already.
4. In the year 1934, the Kedar Nath Jute . took a lease of certain premises Nos. 38, 39 and 40 Dhurrumtollah Road. In 1936 the Kedar Nath Jute . of which Mr. Babulal Rajghoria is the Managing Director. On 22nd February 1939, the municipality gave a written notice to Mr. Babulal Rajghoria pursuant to Section 300, Calcutta Municipal Act, as applied to Howrah which I have quoted above, requiring Mr. Babulal Rajghoria to remove a wall alleged to have been built across Dhurrumtollah Road or Lane within 15 days or to lodge objections within seven days. On 4th March 1939, Mr. Rajghoria wrote to the Engineer of the Howrah Municipality as follows:
With reference to your notice under Section 300, Calcutta Municipal Act, 1923, dated 22nd February 1939, the same has been wrongly addressed to me as I am neither the owner nor occupier of premises Nos. 39, 40 and 41, Dhurrumtollah Road, Salkia. I am however forwarding your notice to Messrs. Kedar Nath Jute ., the party concerned for reply of the same, if they are at all concerned with your notice.
5. On the same day a letter was written by the Managing Agents of the Kedar Nath Jute Manufacturing Company to the Engineer of the Howrah Municipality as follows:
Your notice under Section 300, Calcutta Municipal Act of 1923, dated 22nd February 1939, has been forwarded to us for reply by Mr. Babulal Rajghoria.
In reply we have to say that we have not constructed any pucca wall encroaching and obstructing your road land of Dhurrumtollah Lane as wrongly mentioned in the said notice, which please note and oblige.
6. On 4th April 1939, the engineer of the municipality wrote to the director of Babulal & Co. Ltd., Manging Agents a letter headed:
Re: Encroachment by the construction of a pucca boundary wall upon Dhurrumtollah Lane:
With reference to your letter dated 4th March 1939 regarding above, I have to request you to send your representative to this office any working day between the hours of 3 and 4 P. M. except Saturday to fix a date and time for pointing out the encroachments.
7. On 24th April 1939, the Kedar Nath Jute ., the Managing Agents, withdrawing the notice dated 22nd February 1939 because they said it was served on the wrong person. On 9th August 1939 the municipality served a notice under Section 300, Calcutta Municipal Act, How-rah, on the Jute Company requiring them to remove the wall within 15 days or to make representations within seven days. On 24th August 1939 the period of 15 days had expired and apparently nothing had been done to remove the obstruction or to discuss the matter, whereupon on 2nd November 1939, the Howrah Municipality, through their surveyor, filed a complaint before the Assistant Magistrate under Section 488/300, Calcutta Municipal Act, as applying to Howrah, in respect of the failure of the Kedar Nath Jute Company to comply with the requisition contained in a notice to the Kedar Nath Jute Company, dated 9th August 1939, referred to above. Section 488, Calcutta Municipal Act, Howrah, provides:
(1) Whoever commits any offence by
(a) contravening any provision of any of the sections, sub-section, clauses of sections, provisos or rules of the Calcutta Municipal Act, 1923, as in force in the Municipality of Howrah, mentioned in col. 1 of the following table, or
(b) contravening any provision of any rule made under any of the said sections, sub-sections, clauses or provisos, or (this is the relevant provision)
(c) failing to comply with any direction lawfully given to him or any requisition lawfully made upon him under any of the said sections, subsections, clauses, provisos or rules,
shall be punished with fine which may extend to the amount mentioned in that behalf in col. 3 of the said table.
8. The penalty provided in this particular instance is a fine of Rs. 50 or a daily fine of Rs. 10. The matter came before a first class Magistrate of Howrah who dismissed the complaint and acquitted the accused under Section 245, Criminal P.C. His reasons are as follows:
The points are (1) whether the complaint is barred under Section 534, Calcutta Municipal Act, for not lodging the complaint within three months after the municipality came to know of the alleged encroachment and (2) whether the encroachment alleged to have been made was on a public pathway.
It appears from the evidence of P. W. 1 that on 29th January 1939 the existence of the alleged encroachment came to the notice of the municipality. Exhibit B which is the accused company's reply to the notice requiring removal of the encroachment is dated 4th March 1939 and Ex. C shows that the engineer of the municipality wrote to the accused regarding the encroachment on 4th April 1939. The complaint was filed in Court on 2nd November 1939. Thus it was filed beyond the statutory period of three months and is thus barred under Section 534, Calcutta Municipal Act. As the case fails on the point of limitation it is unnecessary to decide the second point.
9. Section 534, Calcutta Municipal Act, provides as follows:
(1) No person shall be liable to punishment for any offence against this Act or against any rule or by-law made thereunder, unless complaint of such offence is made before a Magistrate within three months, or, if the offence be against the provisions of Section 136, within six months next after -
(a) the date of commission of such offence, or
(b) if such date is not known or the offence is continuous in its nature, the date on which the commission or existence of such offence was first brought to the notice of the Corporation or the Executive Officer.
10. The learned Magistrate appears to have been under the impression that the offence alleged was the building of a wall. In that he was in error. The offence alleged was failure to comply with the notice of the municipality requiring the Jute Company to remove the wall which is a different thing altogether. It is quite true that the municipality, through its officials, knew of the existence of the wall in February, but it was in March that they gave notice to the managing agents to remove the wall. Mr. Babulal Rajghoria who was the managing director of the managing agents, said that he was not the owner or the occupier. In that it seems to me he was correct. The managing director of the managing agents-can hardly be said to be in occupation of the premises or the owner, and I doubt whether the managing agents can be said to be either the owners or the occupiers of the premises. The persons who own and occupy the premises are the company. I am of the opinion that the first notice to the managing agents was not addressed to the proper persons. The company which owns the property cannot, as far as I understand it, evade responsibility for acts in relation to their fixed property by transferring their management to the managing agents. Apparently, the municipality thought over Mr. Rajghoria's objections as objections of the managing agents, and then decided to proceed against the company. In so doing they were right.
11. The summons was served on the manager of the Kedar Nath Jute Company's works and he or some one on his behalf appeared in these proceedings. The second requisition relating to the removal of this obstruction of the wall was sent to the company on 9th August 1939. Fifteen days were allowed in the notice to remove the obstruction. The company did not remove it either within 15 days or at all. Consequently the offence was one for not complying with the notice be remove the obstruction. That offence began on or about 20th August 1939; these proceedings were begun on 2nd November 1939 and therefore within the three months which is set as the limitation time for prosecution under Section 534, Calcutta Municipal Act, as applied to Howrah. The learned Magistrate who tried the matter in the first instance was clearly wrong. The municipality then made an application to the District Magistrate under Section 438, Criminal P.C., for a reference to this Court. The District Magistrate, in my view, took a correct view of the offence which was alleged. He said:
I am inclined to agree with the municipality in this particular contention that it is the service of notice which is the date from which three months would commence. It is impossible to say on what date the municipality becomes cognisant of an encroachment and in many cases it may not be immediately desirable to start prosecution. The offence is not the encroachment but the refusal to obey a legal notice. This may be brought to the notice of the Police Magistrate for future reference.
12. Then he went on:
As regards the present case it is not of sufficient public importance to send up to the High Court. The municipality is hardly affected. The company has leased the land and if ever the lease reverts to the local zemindar (who appears to be behind this application) the question of the right of way will then arise. At the present moment a road leading nowhere in the middle of a mill would appear to be a municipal encumbrance. The application is, therefore, rejected.
13. As regards to the second part of this judgment, in my view the District Magistrate is wrong. If there is an encroachment on a public road in Howrah, that is not a matter to be dismissed lightly. The provisions of the Calcutta Municipal Act in Howarh were intended for the good government and well being of the people of Howrah and the people who use the public roads of Howrah-very important features for the well-being of any town. The encroachments on them are hot lightly to be permitted. In my view, the learned Magistrate in looming to the conclusion that he did, namely, (that the complaint was time barred and therefore the question whether Dhurrumtollah Road was a public road did not arise, was in error. The correct way for the Magistrate to deal with it was first to ascertain whether the road in question was a street in Howrah. If it was not, no further questions arose and the complaint would stand dismissed. If, on the other hand, he came to the conclusion that the road in question was a public street within the meaning of Section 300, Calcutta Municipal Act, Howrah, it was for him to determine whether an obstruction was caused which ought to have been removed and whether there was a failure to remove it. If so and proceedings were brought within a period of three months from the failure, then it was his duty to convict the accused of the offence which was alleged against him under Section 488/300, Calcutta Municipal Act. The acquittal of the accused must, in my opinion, be set aside and this matter must go back to the Court below to be dealt with by some other Magistrate in Howrah according to law as we have endeavoured to explain. I wish to say once again that infringements of Municipal Acts are not to be treated lightly. Municipal Acts are intended for the well-being and health of the community. Let the counter-affidavit filed to-day be kept on the record.
14. I agree that this rule must be made absolute, the order of acquittal set aside and the case remanded to the Court below for a proper trial in accordance with the directions indicated in the judgment of my Lord the Chief Justice.