State Of Bihar v. Ishri Bhagat — 1953 DIGILAW 125 (PAT)

Judgment 1. This is one of a batch of six appeals preferred by the State of Bihar under Section 417, Criminal P. C against the acquittal of the respondent by Mr. K.P. Dubey, Magistrate with second class powers at Bhagalpur, which have been heard together for the sake of convenience as they involve more or less identical questions of law. The respondent was prosecuted under Sec.180, Clauses 2, 3 and 4, of the Bihar and Orissa Municipal Act, being Act 7 Of 1922, for "keeping a pucca platform in his building No. 85 situated in Bazar Road, Ward No. 2 Mohalla Bazar within the limit of Colgong Municipality in the year 1949-50 and also for not paying the license fee in respect of the aforesaid platform for the said year, and also for not renewing the license fee for the same platform in the said year." A petition of complaint, Ex. 8, was filed before a Magistrate at Bhagalpur by Sri S.N. Mukherjee, M. O. in-charge, bearing date 31-3-1950. It contained also a reference to the fact that prosecution was sanctioned by the Chairman, Col-gong Municipality. 2. The Municipality put in evidence the necessary documents to prove that the respondent kept the platform as alleged during the period in question (Exs. 1, 2 and 2/1) and the relevant resolutions passed by the Municipal Board on various dates (Exs. 3, 4, 5, 6 and 9) and a copy of memo from the Senior Deputy Collector to the Chairman, Colgong Municipality, dated 25-12-1947 (Ex.7) to show compliance with the formalities and the requirements of law before prosecution could be launched by the Municipality against the respondent. 3. The respondent raised a number of pleas against the prosecution case to show that no offence was committed. The main plea, however, was that the respondent derived his interest in the house in holding no. 85, and the platform appertaining thereto from Ram Charan Sahu, who executed a kabuliyat in favour of the Colgong Municipality on 11-7-1902 by which he was authorised to construct the platform or arches over the drain on condition of paying an annual rental of Re. 1/-. It was provided in that kabuliyat that the executant would have no objection to the arches being demolished if they were disapproved at any time by the Government or the officers, and the Municipality would have absolute right to undertake the demolition. 1/-. It was provided in that kabuliyat that the executant would have no objection to the arches being demolished if they were disapproved at any time by the Government or the officers, and the Municipality would have absolute right to undertake the demolition. Accordingly, it was urged on behalf of the respondent that it was not necessary for him to take out any license for the maintenance of the platform or arches in question, nor was it necessary for him to pay any fee for the purpose, over and above the amount mentioned in the kabuliyat as the annual rental. 4. The learned Magistrate, who tried the case, convicted the accused person and sentenced him to pay a fine of Rs. 15, in default to undergo simple imprisonment for ten days under Sec.180(5), Bihar and Orissa Municipal Act. The respondent filed an appeal against the judgment and order of the learned Magistrate, and the case was remanded back to him for a fresh consideration. The learned Magistrate, on remand, however, acquitted the accused person. He accepted the evidence led on behalf of the Municipality on the questions of fact, but based his acquittal on the solitary ground "that the accused only objected to the payment of the increased rate, since the main dispute is not with respect to taking out a license but the payment of the fee at the particular rate, The accused has got a kabuliat (Ex. A) in support of his claim to pay at the rate of Re. 1, while the Municipality has got its right to realise at the rate of 4 annas per sq. feet for the platform by the resolution (Ex. 6) which has got the approval of the Government vide letter dated 25-12-1947 (Ex. 7). This is a question which a civil court alone is competent to decide." Thus the acquittal was based upon a particular view of law with regard to the rights of the parties as governed by the kabuliyat (Ex. A) to which reference has been made. 6) which has got the approval of the Government vide letter dated 25-12-1947 (Ex. 7). This is a question which a civil court alone is competent to decide." Thus the acquittal was based upon a particular view of law with regard to the rights of the parties as governed by the kabuliyat (Ex. A) to which reference has been made. 5 The State of Bihar has filed the present appeal against that acquittal on the main ground that the question of law involved in the present case is one of considerable public importance as it governs the right of the Municipality to realise certain tax or fee, as it is empowered to do under the Municipal Act, which is being affected by the decision in question. Learned Standing Counsel for the State contends that the order passed by the learned Magistrate is erroneous, because the real point for decision in the present case is not the interpretation of Ex. A, but the scope of the power of the Municipality. It may incidentally be mentioned that the Bihar and Orissa Municipal Act, 1922, was amended in 1947. This amendment modified the power of the Municipality in certain respect with regard to the rate at which the fee is to be levied. Learned Standing Counsel with, reference to this amended provision, has argued that this power cannot be curtailed by any other consideration, Sec.180, Bihar and Orissa Municipal Act as amended reads as follows: "180. CD No platform shall be erected, re-erected or extended upon or over any public road or drain without the previous sanction of the Commissioners. (2) The owner of every platform, except platforms which are used for giving such access to the houses as the Commissioners may consider necessary, shall, if the Commissioners at a meeting so directed, take out a licence for keeping the platform. (3) Every such licence shall remain in force for one year and shall be renewable annually. (4) For every such licence there shall be paid a fee to be fixed by the Commissioners at a rate of not less than four annas nor more than one rupee for each square foot of the superficial area of the platform except such portion thereof as is used for giving such access to a house as the Commissioners may consider necessary. Provided that different rates may be fixed by the Commissioners for different local areas according to the importance of the locality in the municipality. (5) Any person who contravenes any of the provisions of this section shall be liable to a fine not exceeding fifty rupees." It is pointed out that the Municipal Act is a special Act and the provisions of it will prevail over the provisions of any general enactment. 6 It is next urged that the respondent was prosecuted not for erecting or re-erecting or extending any platform which in fact he had already erected under the kabuliyat, Ex. A, but he was prosecuted under Clause (2) which was meant to provide for the right of the Municipality to realise a license fee from every owner of a platform within the limits of the municipal area, as no one could keep such platforms without taking out a license for the purpose. The respondent undoubtedly had failed to take out a license and, therefore, he was guilty of the contravention of the provisions of this section and was liable to pay the necessary penalty under Clause (5) of the section. 7. Mr. Rajkishore Prasad, who appears on behalf of the respondent has raised the following points in answer to the arguments on behalf of the State. He is supported in his contentions by Mr. U. N. Sinha, who appears in some of these appeals and their arguments supplement each other. The main contention on behalf of the respondent is one of limitation based on Sec.375 of the Municipal Act. it is said that the offence in this case is alleged to have been committed sometime in the year 1949-50 and it was brought to the notice of the Chairman of the Municipality on the 8-6-1949 (Ex. 2) and as such the prosecution was beyond six months of the date of the first commission of that offence, as also beyond six months from the date when it was brought to the notice of the Chairman of the Municipal Board. He has referred in this connection to the provisions of Sec.375 which lays down the period of limitation for initiation of a prosecution for violation of any penal provisions of the Act as well as other matters. Sec.375, Bihar and Orissa Municipal Act may, therefore, be quoted in extenso : "375. He has referred in this connection to the provisions of Sec.375 which lays down the period of limitation for initiation of a prosecution for violation of any penal provisions of the Act as well as other matters. Sec.375, Bihar and Orissa Municipal Act may, therefore, be quoted in extenso : "375. No prosecution for an offence under this Act or any by-law made in pursuance thereof shall be instituted without the order or consent of the Commissioners, 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 Municipality : 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 licence is required to be taken out." It is urged that the omission in the present case is one of failure to take out a license under the Act, and it would undoubtedly be a continuing offence, but since the offence was committed, according to the prosecution case, at any time between 1949-50, the prosecution which was launched on 31-3-1950 fell beyond the period of six months from the date of the first commission of the offence. Since, however, it was a continuing offence, prosecution might be started within six months of the date on which the commission or the existence of the offence was brought to the notice of the Chairman of the Municipality, but in this case it was brought Co his notice much beyond the period of six months, as the documents on record will show, and hence prosecution was clearly barred under that section. 8. I have carefully considered the argument on behalf of the respondent. At one time we were inclined to accept it, but on a fuller consideration it appears that the argument cannot succeed, because in the case of a continuing offence, what the law contemplates is that it is an offence which is deemed to have been committed from day to day, the last date being the expiration of the period for which a license is required to be taken out. The requisite period of six months referred to in the section must, therefore, be calculated from the last date of that period on which alone the offence could be deemed to have been committed afresh by a person violating the provisions of Sec.180 of the Act. A contrary view, if accepted, as urged by learned Counsel on behalf of the respondent, would result in the position that, after the expiry of six months from the date when the matter was first brought to the notice of the Chairman of the Municipality, an offender will be deemed to be doing nothing wrong in failing to take out a license and maintaining a platform. In that view, the proviso to the section which says "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 licence is required to be taken out" would be rendered wholly nugatory. In fact this would curtail and modify the meaning of "continuing offence". There is no warrant for such a view on the terms of Sec.375 of the Act. 9 Mr. U. N. Sinha, who appears in some of the appeals, brought to our notice a case reported in -- Lutti Singh V/s. Bihar Municipality, 1 Cal WN 492 (A), for the proposition he is trying to support before us. It is true that there appears to be an expression of opinion in general terms to that effect in that decision, but the learned Standing Counsel for the State has brought to our notice a decision of the Calcutta High Court reported in -- Chairman of the Howrah Municipality V/s. Barada Prasanna, AIR 1920 Cal 929 (B), where a contrary view has been expressed. The case reported in -- 1 Cal WN 492 (A), is a decision under the Bengal Municipal Act of 1884 whereas the case reported in -- AIR 1920 Cal 929 (B), relates to the Calcutta Municipal Act III of 1899. Sec.353, Bengal Municipal Act and S. 631, Calcutta Municipal Act correspond to Section 375, Bihar and Orissa Municipal Act, 7 of 1922. The case of Lutti Singh V/s. Bihar Municipality (A), was an ex parte decision where the respondent Municipality was not represented & we are unable to accept the view of law expressed in that judgment. Sec.353, Bengal Municipal Act and S. 631, Calcutta Municipal Act correspond to Section 375, Bihar and Orissa Municipal Act, 7 of 1922. The case of Lutti Singh V/s. Bihar Municipality (A), was an ex parte decision where the respondent Municipality was not represented & we are unable to accept the view of law expressed in that judgment. In -- AIR 1920 Cal 929 (B), it was distinctly held that the prosecution started within the period of limitation from the last day of the commission of the continuing offence was not time-barred. The Howrah Municipality started, as required, a prosecution against a pleader failing to take out a licence. It may be useful to refer to the observation of Richardson, J. : "But it by no means follows from that provision that the prosecution must be commenced within three months of the first of a number of days on which the offender practises without a license. The offence, as I have said, is committed afresh or continues to be committed on every day on which he practises without a license and the prosecution may be commenced within three months of the last of such days." The period of limitation in that case was three months. There is a similar expression in the case of -- Noni Lal Sett V/s. Corporation of Calcutta, 7 Cal WN 853 (C). The point has also been indirectly considered in -- N. K. Sarkar V/s. Howrah Municipality, 22 Cri LJ 559 (Cal) (D), and other decisions. It must accordingly be held that prosecution is not barred under Sec.375 of the Act. The provision with regard to the institution of the prosecution within six months of the date on which the offence is brought to the notice of the Chairman of the Municipality is intended to widen the power of the Municipality and not to curtail it, nor to modify the meaning of continuing offence. 10. The next substantial point urged on behalf of the respondent is that in view of Sec.392, Bihar and Orissa Municipal Act, the rights and liabilities of the parties arising oat of the contract, Ex. A, must be held to be governed by the terms thereof. The argument has been like this. 10. The next substantial point urged on behalf of the respondent is that in view of Sec.392, Bihar and Orissa Municipal Act, the rights and liabilities of the parties arising oat of the contract, Ex. A, must be held to be governed by the terms thereof. The argument has been like this. The Bihar and Orissa Municipal Act was enacted in the year 1922, and prior to that, the Bengal Municipal Act, Act 3 of 1884, governed the municipalities within the limits of what later on came to be the province of Bihar. In the year 1902, the Colgong Municipality fell within the province of Bengal as it was then constituted. There was no provision like Sec.180 of the present Act with regard to the rights of a municipality to levy and; realise a fee for the erection or maintenance off platforms under Bengal Municipal Act, (Act 3 of 1884) and it was necessary for the parties to enter into a contract so that the respondent could erect the platform or arches in question. When the present Act came into force in 1922, Sec.392, which reads as follows : "All property, all rights of whatever kind used, enjoyed or possessed by, and all interests of whatever kind owned by, or vested in, or held in trust by or for, the commissioners of a municipality constituted under the Bengal Municipal Act, 18S4, as well as all liabilities legally subsisting against the said commissioners shall pass to the commissioners of the Municipality as constituted under this Act" made provisions for safeguarding contractual rights which arose under the Act preceding that of 1922. It is said that in view of this provision; it must be held that Sec.180 would not apply to a case which was governed by Section 392 of the Act. The argument, on examination, cannot be sustained. Sec.392 of the Act refers only top rights and liabilities which the municipality acquired or undertook as a corporate body prior to 1922. but it did not, and could not, fetter any rights which the successor-in-office of the then Municipal Board would enjoy under any subsequent enactment. The argument, on examination, cannot be sustained. Sec.392 of the Act refers only top rights and liabilities which the municipality acquired or undertook as a corporate body prior to 1922. but it did not, and could not, fetter any rights which the successor-in-office of the then Municipal Board would enjoy under any subsequent enactment. It transpired in the course of discussion on the point that what was granted to the respondent was a lease and not a license, and what was payable by the respondent to the Municipality was a rental as adverted to in the kabuliyat, and not merely a license fee. It was, therefore, urged that the rights of the lessee were certainly protected by Sec.392 of the Act and could not be modified or affected by the right to levy a tax or fee conferred on the Municipality at a subsequent period. Reference was made to --jai Narain V/s. Ali Murtaza, AIR 1951 Pat 190 (E), for the proposition that the respondent acquired a right of occupation of the platform and as such he had not only possession but exclusive possession which would give the kabuliyat the character of a lease. We have considered -- AIR 1951 Pat 190 (E), and also the other decisions which have been referred to in that case, but I am satisfied that the case cited does not bear out the contention of the learned Counsel for the respondent. It considers the well-known criteria to be kept in view in deciding whether a particular document is a lease or a license, but does not carry the matter further than that. 11. The preliminary point to be considered is the definition of Sec.105. T. P. Act and Sec. 52, Easements Act where in different contexts the terms lease and license have been defined. A bare reading of the section would disclose that lease presupposes the creation of an interest in immovable property by the lessor in favour of the lessee. In the present case, what is referred to in the kabuliyat is the drain which would continue to be in possession and ownership of the municipality as before. What the respondent was granted under the document was merely the right to erect at his convenience certain platforms which were not in existence. In the present case, what is referred to in the kabuliyat is the drain which would continue to be in possession and ownership of the municipality as before. What the respondent was granted under the document was merely the right to erect at his convenience certain platforms which were not in existence. The platforms, apart from the drain over which they stood could not be held to be immovable property as defined in Sec.3 T. P. Act itself. In any case, it was merely a right to do something over the drain but not the creation of any interest in the drain itself, and, therefore, the grant of this right to the respondent could not be construed as the right to be enjoyed by him as a lessee. Sec.392, Bihar and Orissa Municipal Act, therefore, does not help the respondent. But assuming for the sake of argument that it is so, the respondent still cannot escape liability for not taking out a license, because Sec.180(2) of the Act provide for the right of a Municipal Board to levy a fee for the maintenance of certain platform within the municipal area. This right must be over and above any right the respondent may have acquired to erect a platform. The extra burden -- if at all it can be called an extra burden -- which is imposed on the respondent by Sec.180 of the Act cannot be challenged by any owner of the platform, because it is within the competence of the legislature in a special enactment to provide for the imposition of any tax or fee. It is not contended on behalf of the respondent that Sec.180 is ultra vires, arid as long as it is good law, the respondent is bound to pay the fee as required, irrespective of whether what he was granted was the right of a lessee or a licensee. 12. The learned Standing Counsel has drawn our attention to Sec.236, Bengal Municipal Act, 15 of 1932 where the Legislature incorporated a saving clause in respect of platforms erected prior to the enactment of that statute and the same not having been done in the present Bihar and Orissa Act of 1922, it should be held that the Legislature in this case intended no exception. The argument has a relevant bearing but will, of course, not be conclusive as the absence of such an explicit provision will not necessarily rule out the argument. Our attention has also been drawn to Craies on Statute Law, 5th edition, pp. 232, 250 and 522 in the main for the proposition that if a contract involves in its operation either directly or collaterally the doing of something which be in contravention of a statue creating duties or imposing obligation, it would be void, and, likewise, if any statute is enacted for public benefit, it cannot be dispensed with. Since they converge upon the same conclusion at which we have arrived, it is unnecessary to enter into any elaborate discussion of the matter. 13. Allied to this branch of the argument is another line taken up by Mr. Rajkishore Prasad, which is that the Municipality is estopped from going against the contract. In disposing of the argument above, I have answered in substance this argument as well, as there is no estoppel against a statute, and as a matter of fact, the question of estoppel cannot arise in such legislations which define and enlarge the powers of a body corporate from time to time passed by the Legislature competent to legislate on the subject. Mr. Rajkishore prasad, who adopted the argument of Mr. U. N. Sinha over and above those he advanced, therefore, can well be said us to have raised the point of want of sanction and proper promulgation of the provisions of the Bihar and Orissa, Municipal Act. We have considered them and I can see no force in these contentions either. 14. The evidence on record, particularly the resolutions passed at various meetings of the Municipal Board, would show that the Board had considered duly the question of the violation of the provisions of Sec.180 in pursuance of which the Tax Daroga prepared a list of the platforms within the municipal area duly signed and verified by Mr. K.P. Mandal, Chairman, Colgong Municipality. The very petition of complaint, ex. 8, would show that the Chairman of the Colgong Municipality also ordered prosecution of the respondent under Clauses 2, 3 and 4 of the Act. K.P. Mandal, Chairman, Colgong Municipality. The very petition of complaint, ex. 8, would show that the Chairman of the Colgong Municipality also ordered prosecution of the respondent under Clauses 2, 3 and 4 of the Act. There is, therefore, nothing defective in the sanction so as to invalidate the prosecution, nor is there anything in the promulgation of the new provisions of Sec.180 which would go against the validity of the prosecution in this case. 15. The section as it stood prior to its amendment in 1947 fixed the minimum limit to two annas and maximum limit to eight annas for each square foot of superficial area, whereas it was raised to four annas and one rupee respectively by the amendment. The learned Magistrate referred to the various documents on record to show that the increased rate of fee was duly approved at a meeting of the Colgong Municipality (ex. 6) sanctioned by the Government by Memo No. 12614 dated 25-12-1947 (ex. 7). All this taken together with the evidence of the Tax Daroga, who proved the preparation of the Register of Platforms and non-payment of the license fee by the respondent, would show that he had due notice of the increased rate of payment under the amended provision of the Act. As a matter of fact, the learned Magistrate has observed, as noted above, that the main contention of the defence is that there was an agreement with respect to this platform by which he was to pay Re. 1/- per annum as the rent of the platform. Even the written statements actually filed do not raise the point of want of notice, and Sec.356 of the Act, to which reference was made by Mr. U.N. Sinha, does not apply to this case, as the approval of the enhanced rate by the Municipal Commissioners is not one of the provisions which the Act directs to be published. The amended provision is not even a bye law, order, notice or other document contemplated under the section, and hence the question of its publication in the manner prescribed does not arise. This point must also fail. 16. A few minor points raised by Mr. The amended provision is not even a bye law, order, notice or other document contemplated under the section, and hence the question of its publication in the manner prescribed does not arise. This point must also fail. 16. A few minor points raised by Mr. Rajkishore Prasad in regard to Section 403(1), Criminal P. C., being a bar, however have not been seriously pressed and need not be elaborately dealt with, as these arguments have obviously no substance in the case of a continuing offence where a new prosecution is for a new offence and the question of previous acquittal is immaterial. The acquittal relied upon in this case was by the appellate judgment in Appeal No. 20 of 1947. 17. Having come to the conclusions referred to above, it must be held that the judgment of the learned Magistrate is erroneous in law and it must be set aside. The respondent is accordingly found guilty under Sec.180(2), Eihar and Orissa Municipal Act, 1922. He is convicted, therefore, of the offence, under Sec.180(5), Bihar Municipal Act charged. The question of sentence, however, is not of any material importance in the case. As a matter of fact, the State filed the appeal for an adjudication of the principle involved in the prosecution, and the respondent also stood upon a certain kind of contractual right as having been acquired under the kabuliyat executed by his predecessor-in-interest. The offence, therefore, is purely of a technical nature, and I accordingly impose a sentence of fine of Re. l/-only, in default to undergo simple imprisonment for one day. 18. I agree and would like to add a few words. Sub-section (1) of Sec.180 of the Municipal Act of 1922 relates to the erection, re-erection or extension of a platform. It is admitted that the platform with which we are concerned is in its original state. Hence, Sub-section (1) has no application. Sub-section (2), which is, the relevant provision here, is in more general terms. It relates to "every platform, except platforms which are used for giving such access to the houses as the Commissioners may consider necessary". There is nothing in the terms of the sub-section to exclude from its application an already existing platform. Reliance is placed on the pre-existing contractual relationship between Ramcharan Sahu and the Municipality. It relates to "every platform, except platforms which are used for giving such access to the houses as the Commissioners may consider necessary". There is nothing in the terms of the sub-section to exclude from its application an already existing platform. Reliance is placed on the pre-existing contractual relationship between Ramcharan Sahu and the Municipality. Pre-existing contractual rights are protected by Sec.392 of the Act but this does not apply to rights which are inconsistent with the Act. 19. I was inclined at first to be impressed with the contention about limitation. A continuing offence is being committed at every moment during which it continues. Hence, under the main provision in Sec.375, a prosecution for a continuing offence would be entertainable till the expiry of six months after the cessation of the offence. Under the proviso the prosecution for a continuing offence "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 Municipality." I have placed the word "existence" in italics (here in ). The "existence" of a continuing offence can be brought to the notice of the Chairman only while the offence is still continuing. That is to say the period of limitation under the proviso expires before the last date indicated by the main provision. At first sight it appeared to me that if the main provision was intended to apply to a continuing offence, the proviso was unnecessary, and therefore, since the proviso applies expressly to a continuing offence, it follows that the main provision has no application. On further consideration I am satisfied that this is not the right view. There is a purpose which the proviso serves even if the main provision applies to a continuing offence. There are cases in which the period of the duration of a continuing offence is of importance,- for instance, default after notice under Sub-section (2) of Sec.289 of the Act. The effect of the proviso is to prevent the Municipality, by allowing the default to continue for a long time, to make the defaulter liable to an unreasonably heavy penalty. The Municipality must prosecute within six months of knowledge. If it does not, the defaulter will not be liable to penalty for the period beyond six months of the institution of the prosecution. 20. The Municipality must prosecute within six months of knowledge. If it does not, the defaulter will not be liable to penalty for the period beyond six months of the institution of the prosecution. 20. There is no force in the contention about promulgation. Sec.356 of the Act has no application, and it is sufficient if knowledge, actual or constructive, is proved. In accordance with Sub-section (2) of Sec.180 of the Act, the enforcement of the provision requiring licenses for the maintenance of platforms was decided at a meeting of the Commissioners held on 30-4-1948, (Vide Ex. 5). Before this the rate of the fee had been decided and had been approved by Government (vide Exs. 6 and 7). Effect must have been given to the Resolution immediately and it is difficult to believe that the accused Isri Bhagat did not know of it. In fact the Tax Daroga (P. W. 1) mentions that there was an earlier case against this accused person "for not taking out licence and not paying the enhanced rate of rent". I may also refer to Sub-section (1) of Sec. 48 of the Act which provides that the minutes of the proceedings of all meetings of the Commissioners are open to the inspection of the tax-payers. The evidence is that at least as early as 19-6-1950 the tax daroga and the President of the Municipality went to the spot and measured the platform for determining the fee payable. Even if Isri Bhagat did not know of the Resolution before, this was sufficient to put him on enquiry and he must be taken to have had constructive knowledge.