Punjab-Haryana High Court
Municipal Council vs Smt. Jaiwanti on 6 July, 2004
Equivalent citations: (2004)138PLR205
Author: Satish Kuimar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kuimar Mittal, J.
1. The Municipal Council, Thanesar has filed the instant petition under Section 482 Cr.P.C. against the order dated 13.7.2000 passed by Additional Chief Judicial Magistrate, Kurukshetra vide which the accused respondent was discharged and the complaint filed by the petitioner against her was dismissed being barred by time; and the revision filed by the petitioner against the aforesaid order was dismissed by the learned Additional Sessions Judge vide order dated 21.9.2002.
2. The petitioner-Municipal Council filed a complaint against the respondent under Sections 208/209 of the Haryana Municipal Act, 1973 (hereinafter referred to as 'the Act') by alleging that the respondent accused raised construction of one room and a kitchen without obtaining sanction from it, whereupon a notice dated 15.9.1995 was issued to her. The respondent did not comply with the said notice. The aforesaid complaint was filed against her on 19.3.1997 after lapse of the period of more than one year. The Trial Court dismissed the said complaint and discharged the accused by holding that under Section 209 of the Act, the accused who failed to comply with the terms of the notice issued to her under Section 208 of the Act, shall be punished with imprisonment for a term up to six months or with a fine which shall not be less than one thousand rupees and more than five thousand rupees or both.
3. Section 468 Cr.P.C. creates a bar for taking cognizance of the offence after the lapse of the period of limitation. It provides that no Court shall take cognizance of an offence of the category specified in Sub-section (2), after the expiry of the period of limitation. Sub-section (2) of Section 468 Cr.P.C. provides the period of limitation which shall be as under:-
(a) six months if the offence is punishable with fine only.
(b) one year, if the offence is punishable with imprisonment for a terms not exceeding one year:
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
4. In the instant case maximum punishment is six months, therefore, the period of limitation for taking cognizance is one year. In view of the aforesaid provisions and the law laid down by the Delhi High Court in Municipal Corporation of Delhi v. Mrs. Krishna Devi, 1988(1) R.C.R. (Crl.) 486, the trial Court dismissed the complaint being time barred and discharged the accused. The said order was affirmed in revision filed by the petitioner before the learned Additional Sessions Judge, Kurukshetra, while observing as under:-
"6. However, after going through the circumstances of the case, it emerges that the complainant-revisionist issued notice under Section 208 of Haryana Municipal Act on 4.10,1995 allegedly within a period of six months of the alleged offence and the complaint was filed by the complainant-revisionist on 19.3.1997 before the learned Addl. Chief Judicial Magistrate for trial of the accused. Therefore, from the circumstances of the case it is evident that the complaint was filed under Section 208/209 of Municipal Committee Act by the complainant-revisionist after expiry of approximately one and a half years i.e. beyond the period of limitation of one year as contained in Section 468 Cr.P.C. It is pertinent to mention here that the alleged offence, if any, is liable to be compounded between the parties and the argument that in case of non compliance of notice under Section 208/209 of the Municipal Act, there is fine of Rs. 50/- per day and as such the same is continuing offence for which no limitation period is prescribed under Section 472 Cr.P.C. is not sustainable because the legislature has specifically mentioned the period of punishment upto six months or with fine. The imposition of Rs. 50/- per day in case of non compliance is just a compensatory amount to be imposed upon a violator of provisions of Section 208/209 of the Municipal Act. The Hon'ble High Court of Delhi in Municipal Corporation of Delhi's case (supra) has held that in such circumstances the provisions of limitation contained in Section 468 Cr.P.C. are applicable in view of A.I.R. 1981 Supreme Cowl 1054. Therefore, it has to be held that the provisions of Section 468 Cr.P.C. are applicable and complaint was filed much after the expiry of period of limitation contained under Section 468 Cr.P.C. and as such the learned Addl. Chief Judicial Magistrate, Kurukshetra has rightly dismissed the complaint while holding the same barred by limitation."
5. The learned counsel for the petitioner submitted that non compliance of the notice issued under Section 209 of the Act is a continuing offence and in view of Section 472 Cr.P.C., in case of continuing offence, a fresh period of limitation shall begin to run at every moment of the time, during which the offence continues. Therefore, the courts below have wrongly dismissed the complaint filed by the petitioner.
6. In the instant case, the respondent raised construction of one room and a kitchen on her own land though without obtaining sanction from the petitioner-Municipal Council. The said construction was raised way back in the year 1995. For that a notice was issued by the petitioner to the respondent and for non-compliance of the same complaint was filed on 19.3.1997. The violation alleged to have been made by the respondent is of Municipal Bye Laws, which has been framed under Section 201 of the Act. If a construction is raised in violation without sanction as required by Section 201 of the Act then the Municipal Committee within a period of six months from the completion of the building can issue notice to the owner of the building for demolition or alteration. In the alternative the committee also has the power to compound the violations in case they file the complaint within a period of one year. In the instant case, only one room and a kitchen were constructed by the respondent on her own land. It is not a case of encroachment on public land. Without going into the larger issue whether the alleged offence was a continuing offence or not and keeping in view the peculiar facts and circumstances of the case, I do not find any reason to interfere with the orders passed by both the courts below, in exercise of the inherent jurisdiction of this Court, particularly when the respondent has constructed one room and a kitchen on her land long back in the year 1995 and she is facing the protracted trial since then.
Dismissed.