Santhanapitchai Fernando, Johnson Fernando, Jackson Fernando and Jonison Fernando vs The Commissioner, Tuticorin Municipality

T. Sudanthiram, J.—The petitioners have filed this petition seeking to quash the proceedings in S.t.C. No. 1604 of 2005 on the file of the

learned Judicial Magistrate No. 1, Tuticorin.

The respondent herein has filed a complaint against the petitioners herein for the offence u/s 216(3) and 317(b) of the District Municipalities Act,

(V of 1920). (Herein after referred as Act).

Mr. S. Subbiah, learned Counsel appearing for the petitioners contended that that the complaint is barred by limitation u/s 347 of the Act. The

learned Counsel pointed out Section 347 of the Act which reads as follows:

Persons empowered to prosecute:

[...] [Save as otherwise expressly provided in this Act, no Court shall take cognizance of any offence] against the provisions of this Act, or of any

rule, or by-law made under it unless complaint is made by the police, or the [executive authority] or by a person expressly authorised in this behalf

by the council or the [executive authority] within three months of the commission of the offence. But nothing herein shall affect the provisions of the

code of Criminal Procedure [1898] in regard to the power of certain magistrates to take cognizance of offences upon information received or upon

their own knowledge or suspicion.

Provided that failure to take out a licence, obtain permission or secure registration under this act shall, for the purposes of this section, be deemed

continuing offence until the expiration of the period, if any, for which the licence, permission or registration is required and if no period is specified,

complaint may be made at any time within twelve months from the commencement of the offence.

The learned Counsel for the petitioners submitted that the offence was allegedly committed on 22.01.2002 and the alleged report was given to

the Office of the respondent on 26.04.2002. As such, the complaint ought to have been filed and the cognizance ought to have been taken on or

before 25.04.2003. But, the present complaint is filed only on 20.06.2003 and therefore, it is barred by limitation.

The learned Counsel for the respondent submitted that though the notice was given on 26.04.2003, it was only a show cause notice as

contemplated u/s 216 of the Act. Section 216(2) & 216(3) reads as follows:

216(2) : The Executive Authority shall serve a copy of the provisional order made under Sub-section (1) on the owner of the building or well

together with a notice requiring him to show cause within a reasonable time to be named in such notice why the order should not be confirmed.

216 (3) : If the owner fails to show cause to the satisfaction of the executive authority, the executive authority may confirm the order with any

modifications he may think fit to make, and such order shall then be binding on the owner.

The learned Counsel submitted that the notice u/s 216(2) dated 26.04.2002 of the Act was served on the petitioners and as the petitioners did

not comply with the conditions, the confirmation order u/s 216(3) of the Act, dated 04.06.2002 was served on the petitioners only on 19.12.2002

and therefore, the limitation period has to be calculated only from 19.12.2002, the date on which the confirmation order was served on the

petitioners.

The learned Counsel for the petitioners submitted that even as per the confirmation order dated 04.06.2002, the complaint ought to have been

filed either on or before 03.06.2003. The learned Counsel for the respondent submitted that in the complaint filed, in column 7 which is for

mentioning the nature of the offence and the date, the date is mentioned only as 22.12.2002. The learned Counsel for the respondent also

submitted that the file contains particulars with regard to the date of confirmation order being served on the petitioners.

This Court has gone through the copy of the complaint filed against the petitioners and also the typed set of papers filed by the petitioners which

contains the copy of the show cause notice issued by the respondent dated 04.06.2002. As per Section 347 of the Act, the offence in this case is

deemed as the continuing offence. The complaint ought to have been made within twelve months from the commencement of the offence. As per

Section 216(3) of the Act, the confirmation order is dated 04.06.2002. But, the date mentioned in column 7 of the complaint is only 22.12.2002.

It can be definitely said that the period of limitation does not commence from the date 26.04.2002 which is mentioned in the provisional order

made u/s 216(2) of the Act.

The next question is whether the date 04.06.2002 is to be taken into account or 19.12.2002 is to be taken into account for the commencement

of the period of limitation is to be analysed. The confirmation order dated 04.06.2002 gives three days time for complying the condition as per

Section 338(a) of the Act. Section 338 and 338(a) of the Act reads as follows:

338:- Consequence of failure to obtain licences, etc, or of breach of the same:

If, under this Act, or any rule, by-law or regulation made under it, the licence or permission of the council or executive authority or registration in

the municipal office is necessary for the doing of any act, and if such act is done without such licence or permission or registration, or in a manner

inconsistent with the terms of any such licence or permission, then-

(a) the executive authority may by notice require the persons so doing such act to alter, remove, or, as far as practicable, restore to its original state

the whole or any part of any property, respondent immovable, public or private, affected thereby within a time to be specified in the notice and

further.

Therefore, this three days time would come into effect only after the order is served on the person and definitely not from the date of the order

passed. While so, on the failure to comply the final order, the date of commencement of the offence is only three days after serving the order u/s

216(3) of the Act. Though no material is furnished along with the complaint to show the order passed u/s 216(3) of the Act dated 04.06.2002 was

served on the petitioner on 19.12.2002, an opportunity has to be given to the complainant/respondent herein. It is for the Trial Court to decide the

date on which the order u/s 216(3) of the Act was served to the petitioners and thereby, to calculate the period of limitation. It is not possible at

this pre-mature stage to reject the submissions made by the learned Counsel for the respondent that the order passed u/s 216(3) of the Act dated

04.06.2002 was served on the petitioner only on 19.12.2002.

In view of the above said observations, the contention of the learned Counsel for the petitioners that the complaint is barred by limitation is not

acceptable. Anyhow, it is open to the petitioner during the trial on the basis of the evidence to contend that the complaint is barred by limitation.

In the result, the criminal original petition is dismissed. Consequently, connected miscellaneous petition is also dismissed.