JUDGMENT - S.S. PARKAR, J.:---All these three petitions have been filed the members of three separate societies viz. Railwaymen's Apna Ghar Co-operative Housing society Ltd., A B, C D and E, situated at Shivaji Nagar, Jogeshwari (East), Bombay which are owning three different buildings. All the three petitions have been filed by the members of the said Societies for quashing the prosecutions filed against them for occupying the building without requisite occupation certificates under section 353-A of the B.M.C. Act. Since the point raised in all the three petitions is common they were heard together and are being disposed of by this common judgment. 2. So far as the petitioners in Criminal Writ Petition No. 1246 of 1993 are concerned they had occupied the building in the year 1987 while the petitioners in other two petitions had occupied the buildings in the year 1992. The first petition is filed for quashing the complaints filed under section 353-A of the B.M.C Act in the Metropolitan Magistrate's 39th Court, Vile Parle, Bombay. In so far as the other two petitions are concerned the complaints were filed on 19-8-1993 in the same Court. The present petitions have been filed on various grounds, inter alia, stating that the petitioners who are the members of the society were not in the wrong. They were given an impression by the builder, who was the Chief Promoter of the society, that every thing was in order. Reliance is placed on the circular issued by the Builder K.B. Joshi on 11th March, 1987 annexed as Exhibit “A” to the Petition No. 1246 of 1993 in which it is stated in the very fist paragraph as follows : “The occupation certificate for the first phase has since been received although it has been completed by our contractor in 1985.” The said circular was issued for the purpose of recovery of assessment taxes from the allottees of the flats. The case of the petitioners is that they had made entire payments to the builder who was the Chief Promoter of the society and they were allowed to occupy the flats in question by the builder and it was the duty of the builder to obtain occupation certificates and, therefore, it is the builder who is liable to be prosecuted and not flat owners who are innocent. Perusal of section 353-A(1) of the B.M.C. Act however, makes it clear that though it is the duty of the employer of the licensed surveyor or person approved by the Commissioner who is allowed to erect a building to send a notice to the Commissioner in his office in writing about the completion of the building and obtain occupation certificate, but sub-section (2) of the said section, in terms, prohibits any person from occupying the building without permission for occupation to be granted by the Commissioner. Thus occupying the flats without occupation certificate is prohibited and, therefore, occupiers are also liable to be punished. The contravention of provisions of section 353-A is liable to be punished under section 471 of the B.M.C. Act for the first offence which imposes penalty of minimum of Rs. 500/- which can extend upto penalty of Rs. 2,500/-. After the first conviction if the offence is continuing the penalty that can be imposed under section 472 of the Act is from minimum of Rs. 200/- to maximum of Rs. 1000/- per day. 3. After reading the complaint it appears that prima facie case has been made out against the petitioners as admittedly at the time of filing of the complaint and even till today the buildings are being occupied without the requisite occupation certificates and, therefore, the complaints cannot be quashed by this Court in its writ jurisdiction. If the petitioners are having anything to contend by way of defence it is always open for them to plead their defence before the trial Court. For instance it was contended by Mr. Parekh, learned Advocate appearing in the first petition that it is within knowledge of the B.M.C. whether the occupation certificates were issued or not in view of the above Circular dated 11th May, 1987 issued to the petitioners by the builder copy whereof is annexed as Exhibit “A” to the petition. This is a matter of defence which can be raised by the petitioners at the time of their trial because it is the case of the B.M.C. that no occupancy certificates have been issued so far and the buildings in question were occupied and are continued to be occupied without requisite occupation certificates. I am told that the builder was also prosecuted and he admitted his guilt and the penalty was imposed on him. 4. I am told that the builder was also prosecuted and he admitted his guilt and the penalty was imposed on him. 4. On behalf of the petitioners it was then contended that the prosecution was barred by limitations in view of section 514(c) of the B.M.C. Act. The said section prescribes the period of limitation within which complaints of offences punishable under the B.M.C. Act can be filed in the Court. The learned Counsel for the petitioners has relied on section 514(c) of the B.M.C. Act which is worded as follows : “514. No person shall be liable to punishment for any offence made punishable by this Act, unless complaint of such offence is made before a Presidency Magistrate within the time hereinafter prescribed in that behalf, namely :--- (a) ... ... ... (b) ... ... ... (c) if the offence be against any other provision of this Act, within three months next after the commission of such offence.” 5. It was, therefore, contended that since the buildings were occupied in the first petition in the year 1987 and in other two petitions in the year 1992 and the complaints were filed in the month of August 1993 in all the three cases, the petitioners were not liable to be prosecuted at all as they were not liable for punishment for any offence allegedly committed more than three months before filing of the complaints which are impugned in these petitions. Reliance was placed on the recent decision of the Single Judge of this Court in the case of (Jayashree C. Sangoi v. D.P. Mokashi)1, reported in 2000(5) Bom.C.R. 208 . It was a case, no doubt, where the prosecution was lodged under section 353-A of the B.M.C. Act for occupation of the building without requisite occupation certificate. The members of the society who had occupied their flats were noticed by the B.M.C. staff in August 1985 but the prosecution was lodged under section 353-A in December 1985. It was held that in view of section 514(c) of the B.M.C. Act the prosecution was time barred and, therefore, order of conviction was set aside. In that case the occupants were convicted and penalty was imposed by the trial Magistrate which was confirmed by the Sessions Court and the said orders were challenged in this Court. It was held that in view of section 514(c) of the B.M.C. Act the prosecution was time barred and, therefore, order of conviction was set aside. In that case the occupants were convicted and penalty was imposed by the trial Magistrate which was confirmed by the Sessions Court and the said orders were challenged in this Court. Those orders of conviction and sentence were quashed and set aside by this Court in its writ jurisdiction on the ground that the prosecutions were barred by limitation under section 514(c) of the B.M.C. Act, quoted above. 6. The learned Counsel Mr. R.T. Walawalkar appearing on behalf of the B.M.C. on the other hand contended that the provisions of section 514(c) of the B.M.C. Act will not be applicable in this case because the offences committed by the petitioners are continuing offences in as much as the petitioners continue to commit the offences by continuing in the occupations of the buildings in question without the requisite occupation certificates. He cited in support of his contention the various judgments of this Court to which I will advert to subsequently. 7. Counsel for the petitioners, however, relying on section 472 of the Act, contends that the limitation of three months under section 514(c) of the Act is applicable and continuing offence would be committed only in case the petitioners were earlier convicted and lodging the complaint within the prescribed period of limitation of three months as prescribed under section 514(c) of the Act. This contention raised on behalf of the petitioners is not correct. 8. Section 472 of the B.M.C. Act comes into operation only after the conviction is recorded against the accused. If the offence is continued even after the conviction it is then attended with higher amount of penalty payable for every day when the offence is continued. But so far as the period of limitation is concerned it is extended so long as the offence is continued to be committed, as in these cases. If the offence is continued even after the conviction it is then attended with higher amount of penalty payable for every day when the offence is continued. But so far as the period of limitation is concerned it is extended so long as the offence is continued to be committed, as in these cases. If the occupation certificate had been obtained by the petitioners more than three months before the lodging of the complaint or the petitioners had ceased to occupy the flats in question unauthorisedly without occupation certificate more than three months prior to the lodging of the complaint, the bar of limitation under section 514(c) of the Act would have been applicable and the prosecutions would have been barred by limitation. But so long as the illegal act is continued by the petitioners they are liable to be prosecuted within three months from the date of their last unauthorised occupation. In these cases since the petitioners have continued their unauthorised occupation in contravention of the provisions of the B.M.C. Act the offence is continued to be committed by them which is an on going act and, therefore, the complaints which were lodged while the petitioners were continuing their illegal occupation cannot be said to be barred by limitation. The decisions of the Division Benches of this Court and the Supreme Court cited on behalf of the respondent corporation may be considered here which support the above view. 9. In the first place reference may be made to the decision of the Division Bench of this Court in the case of (Emperor v. Karsandas Govindji)2, reported in A.I.R. 1942(29) Bombay 326. There a factory was started without the requisite licence and was continued to be run without licence. It was held by the Division Bench that establishing of the factory without permission is an offence which is committed once for all when the factory is established but working of the factory without permission was an offence which arises on every day on which factory is so worked. The Court was considering the provisions of the Bombay City Municipal Act of 1888. Setting aside the acquittal order on the ground of limitation the Division Bench convicted the appellant for continuing the offence of running the factory. The Court was considering the provisions of the Bombay City Municipal Act of 1888. Setting aside the acquittal order on the ground of limitation the Division Bench convicted the appellant for continuing the offence of running the factory. In the present case also so far as the first occupation without obtaining requisite completion certificate is concerned, can be said to be an offence which is committed once, but when the occupation is continued illegally without the requisite certificate the offence arises on each day and becomes a continuing offence and, therefore, the limitation period is extended so long as the unauthorised occupation continues. 10. Similar view was taken by yet another Division Bench of this Court in the case of (State v. Bhiwandiwalla)3, reported in A.I.R. 1955 Bombay 161. That was a case arising under the provisions of the Factories Act and Bombay Factories Rules for failure on the part of the accused to apply for registration of factory and for grant of licence. The prosecution was lodged after a period of limitation for not obtaining the licence to manufacture and, thereafter for continuing to run the factory without licence. Trial Court accorded the accused on the ground of limitation. Following the earlier decision of the Division Bench of this Court in Karsandas case (supra) the Bench held that so far as the first charge is concerned, that is not obtaining the requisite licence for running the factory, it was committed once and, therefore, was barred by limitation but the second charge for using the premises as a factory without obtaining licence was held to be not barred by limitation because it amounted to be a continuing offence and in respect of continuing offence it would be impossible to uphold the plea of limitation raised on behalf of the accused and, therefore, complaint could not be dismissed as barred by limitation. The order of acquittal was set aside by this Court as regards continuing offence. In that case initially the offence was committed in March 1952 and the complaint was lodged in July 1953 after the period of limitation of three months. 11. Similarly reliance was placed on the decision of the Supreme Court in the case of (Bhagirath Kanoria others v. State of M.P.)4, reported in A.I.R. 1984 S.C. 1688. That was a case where the accused were being prosecuted for non-payment of the provident fund contribution. 11. Similarly reliance was placed on the decision of the Supreme Court in the case of (Bhagirath Kanoria others v. State of M.P.)4, reported in A.I.R. 1984 S.C. 1688. That was a case where the accused were being prosecuted for non-payment of the provident fund contribution. The contention was raised that offence of non-payment of employer's contribution was committed once and for all on the expiry of fifteen days after the close of every month when it was liable to be paid and, therefore, prosecution ought to be launched within the period of limitation under section 468 of Cri.P.C. The Supreme Court repelled the contention by observing that late payment could not have absolved the accused of their original guilt but it would have only snapped the recurrence. It was further observed that each day that the accused failed to comply with their obligation to pay their contribution to the fund, they committed fresh offence. Referring to the decisions of various courts including English Courts and above two decisions of this Court in the case of Emperor v. Karsandas Gogindji and State v. Bhiwandiwalla (supra) the Supreme Court held that the prosecutions or the complaints lodged under the provisions of the Provident Fund Act were within time relying on sections 471 and 473 of Cri.P.C. 12. In the recent decision of the Apex Court delivered in the case of (G. Patel Vokkart Ltd. v. Dundayya G. Hiremath)5, reported in 1991(2) S.C.C. 141 the Supreme Court, after considering the various decisions on the point, took similar view in the context of section 630 of the Companies Act and held that so far as the offence under section 630 of the Companies Act is concerned it is a continuing offence so long as it continues to be wrongfully occupied or withheld by the accused and fresh cause of action arises every day when the property is withheld wrongfully by the accused. In this case the fact that the occupation certificate is issued once only would not save the petitioners from being prosecuted for continuing to occupy the flats in question unauthorisedly without the requisite occupation certificate issued by the B.M.C. 13. In this case the fact that the occupation certificate is issued once only would not save the petitioners from being prosecuted for continuing to occupy the flats in question unauthorisedly without the requisite occupation certificate issued by the B.M.C. 13. In view of the aforesaid decisions of the Division Benches of this Court as well as of the Supreme Court on the point which were not brought to the notice of my learned Brother Das, J., who delivered the judgment in the case of Jayashree C. Sangoi v. D.P. Mokashi (supra), the same is per incuriam and not binding on me. No doubt I am bound by the aforesaid decisions of the Division Benches and the judgments of the Supreme Court which were not cited before Das, J. 14. In the circumstances, in view of the above position in law, the contention about bar of limitation raised on behalf of the petitioners is not sustainable and, therefore, these petitions are liable to be dismissed. 15. In the result these petitions are dismissed and rule is discharged in all the petitions. 16. Counsel for the petitioners apply for continuation of the interim stay for a period of eight weeks from today. Mr. Walawalakar, appearing for the B.M.C. states that stay may be extended maximum for a period of four weeks. I see no reason to continue the stay for such a long time when these petitions were pending in this Court since the year 1993. Accordingly, interim stay granted by this Court earlier in all these petitions will continue for a period of four weeks from today. 17. On the request of petitioners Counsel issue of certified copy is expedited. Petition dismissed. -----