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2006 DIGILAW 2305 (PNJ)

Nagar Panchayat v. Gallu Singh

2006-05-24

SATISH KUMAR MITTAL

body2006
Judgment Satish Kumar Mittal, J. 1. This order shall dispose of the aforesaid 41 petitions, which have been filed by Nagar Panchayat, Handiaya, Tehsil Barnala, District Sangrur, Under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) for setting aside the orders, passed by Judicial Magistrate, 1st Class, Barnala, whereby the complaints filed by the petitioner Under Section 195-A(2) of the Punjab Municipal Act, 1911 (hereinafter referred to as the Act) were dismissed being barred by time in view of Section 468 of the Code, and taking of cognizance of the offence after the expiry of limitation was refused and consequently, the respondents were discharged. The petitioner has also challenged the orders passed by Additional Sessions Judge, Barnala, whereby the revisions filed by it against the aforesaid orders have been dismissed. 2. Admittedly, the respondents, the alleged accused, are owners of the properties, which are situated within the limits of Nagar Panchayat, Handiaya. Allegation against the respondents is that they had raised the construction on their properties without ob taining sanction from the petitioner, as required Under Section 189(1) of the Act and without giving any notice in writing as required Under Section 189(2) of the Act. It is the case of the petitioner that when the information in this regard was received, notice Under Sections 195 and 195-M of the Act was served upon the respondents and they were asked to stop construction which they had carried without obtaining requisite sanction and further directed to demolish the same, failing which action would be taken against them. Subsequently, after more than five years, the complaints Under Section 195-A(2) of the Act were filed against the respondents in the Court of Judicial Magistrate, 1st Class, Barnala. The said complaints were not filed on any resolution passed by the Nagar Panchayat, but these were filed on the direction of the Deputy Director, Local Government, Patiala, exercising the powers Under Section 234 of the Act. The said complaints were dismissed by the trial Court, vide separate orders, while observing as under: In view of the provision of Section 469 Cr.P.C. the period of limitation for filing the complaint is six months, but the instant complaint filed by the complainant is after the expiry of limitation. The said complaints were dismissed by the trial Court, vide separate orders, while observing as under: In view of the provision of Section 469 Cr.P.C. the period of limitation for filing the complaint is six months, but the instant complaint filed by the complainant is after the expiry of limitation. The bar of limitation is absolutely bar and no court shall take cognizance of an offence after expiry of period of limitation as elaborated in Section 468 Cr.P.C. Now, question remains when the period of limitation will commence, the period of limitation in relations to an offence in question shall commence on the day of offence or on the first day, on which offence comes to the knowledge of a person aggrieved by the offence. Committee is an aggrieved person and offence came to the notice of the committee on the day of service of notice dated 11.4.1997 whereas, the complaint has been filed after about six years which is absolutely time barred and in view of Section 468 Cr.P.C., the Court cannot take cognizance of an offence after the expiry of limitation period, and accordingly, accused is, for the time being, is discharged in this complaint. 3. The revision petitions filed by the petitioner against the orders passed by the trial Court have also been dismissed by the revisional court. Hence, these petitions have been filed by the petitioner. 4. Counsel for the petitioner submitted that both the Courts below have committed grave illegality while dismissing the complaints of the petitioner on the ground of limitation, as the offence Under Section 195-A(2) of the Act was a continuing offence and fresh period of limitation commenced at every moment. He submitted that Sub-section (2) of Section 195-A of the Act provides that if a person fails to comply with the terms of the notice, he shall be punishable with a fine which may extend to one thousand rupees and when the non-compliance is a continuing one, with a further fine which may extend to fifty rupees for every day. Thus, when the respondents did not comply with the notice served upon them, fresh period of limitation shall continue to run at every moment, during which offence continues. In support of his contention, learned Counsel placed reliance upon decisions of the Supreme court in State of Bihar v. Deokaran Nenshi and Anr., Bhagirath Kanoria and Ors. Thus, when the respondents did not comply with the notice served upon them, fresh period of limitation shall continue to run at every moment, during which offence continues. In support of his contention, learned Counsel placed reliance upon decisions of the Supreme court in State of Bihar v. Deokaran Nenshi and Anr., Bhagirath Kanoria and Ors. v. State of M.P. and Gokak Patel Volkart Ltd. v. Dundayya Gurushiddaiah Hiremath and Ors. 5. After hearing counsel for the parties, in the facts and circumstances of the cases, I do not find any ground to set aside the impugned orders, passed by the Court below, in exercise of the inherent power of this Court Under Section 482 of the Code. The difference between an offence and a continuing offence is well recognized. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and reoccurs, there is the offence committed. The expression continuing offence has not been defined in the Code, The question whether a particular offence is continuing offence must necessarily depend upon the language of the statute which creates that offence, the nature of the offence and, above all, the purpose which is intended to be achieved by constituting the particular act as an offence. The Supreme Court in CWT v. Suresh Seth has observed that the distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default. It was further observed that the Court should not be eager to hold that an act or omission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the legislature. 6. It was further observed that the Court should not be eager to hold that an act or omission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the legislature. 6. It is also well settled that the object of introducing Section 468 of the Code was to put a bar of limitation on prosecutions and to prevent the parties from filing cases after a long time, as it was thought proper that after a long lapse of time, launching of prosecution may be vexatious, because by that time even the evidence may disappear. The general rule of limitation is based on the Latin maxim: vigilantibus, et non dormientibus, jura subveniunt (the vigilant and not the sleepy, are assisted by the laws), Section 195-A(1) of the Act is attracted where a building is begun, erected or re-erected without a sanction as required Under Section 189(1) of the Act, but not completed. The Committee, may by notice, require the owner of the building to discontinue the construction from the ate of the service of notice. If such person fails to comply with the term of such notice, he shall be punishable with a fine which may extend to one thousand rupees and when the non-compliance is a continuing one, with a further fine which may extend to fifty rupees for every day after the first during which the non-compliance continues. 7. In the instant cases, notices were issued stating therein that the respondents had started construction without obtaining requisite sanction from the Nagar Council and they were asked to stop the construction and demolish the construction which they have so raised. I have perused the complaints in each case. It has been no where stated that after issuing the notice, the concerned respondent did not stop the construction and he/she continued to raise construction. In the complaint, only it was stated that the respondents did not comply with the notice. So what the respondents have not complied with in the instant cases is that they did not demolish the construction raised by them Without obtaining requisite sanction. In that situation, in my opinion, the respondents did not commit any continuing offence. In the complaint, only it was stated that the respondents did not comply with the notice. So what the respondents have not complied with in the instant cases is that they did not demolish the construction raised by them Without obtaining requisite sanction. In that situation, in my opinion, the respondents did not commit any continuing offence. In a similar situation, the Andhra Pradesh High Court in The Public Prosecutor, High Court of Andhra Pradesh, Hyderabad v. Katta Krishnamurthy 1997 Madras Law Journal Criminal 372 has held that once the unauthorised work is completed the offence is completed. No offence is made for keeping in existence the unauthorised construction or reconstruction. If the owner of the building does not comply with the notice issued by the Committee for removal of the unauthorised construction within a specified time, action can be taken by the Committee for giving due effect to the notice i.e. for removing the unauthorised construction and then to recover the expenses incurred for getting the unauthorised construction removed. But such an offence cannot be said to be a continuing offence. Once the construction is made without necessary permission, the offence is complete for once and for all. The offence committed for construction or reconstruction without applying for the necessary permission is complete as soon as the unauthorised construction is made. 8. Similar is the situation here. In the instant case also, it is not the case in the complaints that the respondents, in spite of the notice issued to them, did not stop construction and continued to raise further construction. Here the non-compliance is that they have not demolished the construction already raised by them. 9. In another case, a Division Bench of the Assam High Court in Silchar Municipal Board v. Sudhir Chandra Das 1972 Criminal Law Journal 534 has held that the offence Under Section 176 of the Assam Municipal Act, 1956 for constructing the building without sanction is not a continuing offence. It has been held that once the building was constructed without sanction, the offence was complete and the said offence was not a continuing offence. Thus, in my opinion, in the instant case, the alleged offence against the respondents was not a continuing offence. It has been held that once the building was constructed without sanction, the offence was complete and the said offence was not a continuing offence. Thus, in my opinion, in the instant case, the alleged offence against the respondents was not a continuing offence. The respondents have committed the offence of constructing the buildings without sanction as required Under Section 189(1) of the Act and such an offence is punishable with a fine which may extend to five hundred rupees Under Section 219 of the Act and for such an offence, Section 468 of the Code provides that no Court shall take cognizance of such an offence after lapse of period of limitation. It is also well settled, as held by the Supreme Court in Faridabad Complex Administration v. Yadu (1997-2) 116 P.L.R. 183 (S.C.), that if the owner of the building constructs the building without sanction from the Municipal Committee, a notice for demolition of unauthorised construction is not issued within six months of the date of construction, the building erected without sanction cannot be demolished. The limitation period prescribed for such an offence is six months. Even otherwise, in these cases, the respondents have already suffered a lot by facing long protracted trial. There are also ample provisions under the Act for compounding the unauthorised construction. 10. In view of the above, I do not find any ground to interfere in the impugned orders, passed by the Courts below, in exercise of the inherent power of this Court Under Section 482 of the Code. 11. Dismissed.