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N.N Boss (Survey Ove... v. Managbb, Kbdar Nath ...
Judgment Summary — Howrah Municipality v. Kedar Nath Jute Manufacturing Co., Ltd. (per Derbyshire, C.J.)
Factual and Procedural Background
This matter arose under the provisions of the Calcutta Municipal Act, 1923, as applied to the Municipality of Howrah (Howrah Municipal (Temporary Provisions) Act, 1933). A 1917 survey map showed a longitudinal space identified as Dhurrumtollah (Dharumtollah) Road/Lane which the Municipality treated as a public road. The Kedar Nath Jute Manufacturing Company, Ltd. leased premises on Dhurrumtollah Road in 1934 and later purchased other premises. The Municipality's Survey Overseer alleged that the Company constructed a pucca wall that obstructed Dhurrumtollah Lane.
Procedurally, the Municipality issued notices under section 300 of the Calcutta Municipal Act to remove the alleged obstruction. The first notice (22 Feb 1939) was directed to the managing director of the Company's managing agents; the managing director replied that he was neither owner nor occupier and forwarded the matter to the Company. The Municipality later withdrew that first notice and served a fresh notice on the Company on 9 Aug 1939 requiring removal within fifteen days (or representation within seven days). When the Company did not remove the wall, the Municipality filed a complaint before an Assistant Magistrate on 2 Nov 1939 under sections 300 and 488 (as applied to Howrah).
A First Class Magistrate dismissed the complaint and acquitted the accused under section 245 Cr.P.C., holding that the prosecution was barred by the three-month limitation in section 534 of the Calcutta Municipal Act. The Municipality sought a reference to the High Court (via sec. 438 Cr.P.C. to the District Magistrate), and a Rule nisi was granted calling on the District Magistrate and the Manager of the Company to show cause why the magistrate's order should not be set aside. The Chief Justice delivered judgment setting aside the acquittal and remanding the matter to the Court below for trial consistent with the directions given; Bartley, J. concurred.
Legal Issues Presented
- Whether the complaint filed by the Municipality was barred by the three-month limitation period under section 534 of the Calcutta Municipal Act.
- Whether the alleged encroachment (the wall) was on a public street or lane within the meaning of the Calcutta Municipal Act (section 300), i.e., whether Dhurrumtollah Road/Lane was a public street of Howrah.
- Whether the offence alleged was the construction of the wall itself or the failure to comply with a requisition/notice to remove the obstruction under section 300 (and thereby an offence under section 488 read with section 300).
- Whether the initial notice, served on the managing agents or their managing director, was properly addressed for the purposes of starting the limitation period or taking proceedings.
Arguments of the Parties
Howrah Municipality (Applicant)
- The Municipality treated Dhurrumtollah Road/Lane as a public road and alleged that a pucca wall erected by or on behalf of the Company obstructed that public way.
- The Municipality's position was that the relevant offence was the refusal or failure to obey a lawful notice under section 300 (i.e., failing to remove the obstruction), and that the three-month limitation under section 534 should run from service of the notice requiring removal rather than from the date the Municipality first became aware of the encroachment.
- The Municipality proceeded by issuing a fresh requisition to the Company on 9 August 1939 and subsequently filed the complaint on 2 November 1939 after non-compliance.
Kedar Nath Jute Manufacturing Company / Managing Agents
- The Company (through managing agents Babulal Rajghoria & Co., Ltd., and its managing director Mr. Babulal Rajghoria) denied having constructed any pucca wall encroaching on Dhurrumtollah Lane.
- The managing director expressly stated in correspondence that he was neither the owner nor the occupier of the premises and that the notice was wrongly addressed to him; he forwarded the notice to the Company for reply.
- Implicit in the Company's and managing agents' replies was a contention that the first notice was improperly directed or that the managing agent was not the appropriate addressee for enforcement action.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court engaged in a statutory and factual analysis focused on the true nature of the alleged offence and the proper commencement point for the limitation period in section 534.
- Identification of the statutory framework: The Chief Justice set out relevant provisions of the Calcutta Municipal Act (as applied to Howrah), notably section 295 (vesting of public streets in Commissioners), section 300 (power to require removal of walls and other obstructions and to remove them, with no compensation), section 488 (penalty for contravention or failing to comply), and section 534 (limitation — complaint within three months).
- Clarification of the alleged offence: The Court observed that the First Class Magistrate mistakenly treated the offence as the construction of the wall (i.e., the physical act of building), whereas the complaint actually alleged an offence consisting of failure to comply with the Municipality's notice requiring removal of the wall (i.e., non-compliance with a lawful requisition under section 300, resulting in liability under section 488/300).
- Correct starting point for limitation: The Chief Justice concluded that, for an offence consisting of failure to comply with a notice under section 300, the date from which the three-month limitation in section 534 runs is the date of service of the notice requiring removal. The Court reasoned that knowledge of the encroachment by officials at an earlier date does not necessarily start the limitation period because it would be impossible or impractical in many cases to ascertain when the Municipality first became "cognisant" and because prosecution commonly follows the service of a formal requisition and any failure to obey it.
- Application of facts to law: The Court reviewed the timeline. The first notice (22 Feb 1939) had been addressed to the managing agents (or their managing director) and was later withdrawn because it was thought to have been served on the wrong person. A subsequent requisition was served on the Company on 9 Aug 1939, allowing fifteen days to remove the wall. The Municipality filed the complaint on 2 Nov 1939. The Chief Justice held that the offence of non-compliance with the August requisition began on or about 24 Aug 1939 (after fifteen days had expired). Proceedings begun on 2 Nov 1939 were within three months of that date, and therefore not time-barred under section 534.
- On the District Magistrate's view: The Court noted that the District Magistrate was correct insofar as he endorsed the proposition that the service of notice is the date from which three months would commence. However, the Chief Justice disagreed with the District Magistrate's decision to refuse reference to the High Court on the basis that the matter lacked sufficient public importance. The Chief Justice emphasized that encroachments on public roads are matters of significance to Howrah's governance and public welfare and should not be dismissed lightly.
- Directions as to trial: The Court explained that the correct procedure for a Magistrate upon receiving the case is first to determine whether Dhurrumtollah Road/Lane is a public street within the meaning of section 300. If it is not, the complaint should be dismissed. If it is, the Magistrate must determine whether an obstruction existed that ought to have been removed and whether there was a failure to remove it; if those elements are found and proceedings were timely, the Magistrate's duty would be to convict under sections 488/300.
Holding and Implications
Core Ruling: The Rule nisi is made absolute; the order of acquittal is set aside; the case is remanded to the Court below to be dealt with by some other Magistrate in Howrah for proper trial in accordance with the directions given.
Consequences and practical effects:
- The First Class Magistrate's acquittal of the accused is vacated and the matter returns to the trial court for reconsideration by a different Magistrate.
- The trial court is directed first to decide whether Dhurrumtollah Road/Lane is a public street within the meaning of section 300 of the Calcutta Municipal Act as applied to Howrah. If it is a public street, the court must then decide whether an obstruction existed and whether there was a failure to remove it after lawful notice, and, if proceedings were timely, proceed accordingly.
- The counter-affidavit filed in the High Court was ordered to be kept on the record.
- No new legal precedent beyond these directions was authoritatively laid down by the Court; the decision resolves the matter on statutory construction and application to the facts and furnishes directions for the correct approach in the trial court rather than establishing a broad novel rule of law.
Judge concurrence: Bartley, J. agreed with the Chief Justice's conclusion that the Rule should be made absolute, the acquittal set aside, and the case remanded for proper trial as directed.
The Judgment of the Court was delivered by
Derbyshire, C.J:— On December 16th, 1940, at the instance of Mr. N.N Bose, the Survey Overseer of the Howrah Municipality, this Court granted a Rule nisi upon the District Magistrate of Howrah and upon the Manager of the Kedar Nath Jute Manufacturing Company, Limited, the Opposite Party, to show cause why an order made by the District Magistrate of Howrah should not be set aside or such other or further order or orders made as to this Court might seem fit and proper.
The case arises under the provisions of the Calcutta Municipal Act, 1923, as extended to the Municipality of Howrah with certain modifications and restrictions. The Act was applied as from April 1st, 1933, by the Howrah Municipal (Temporary Provisions) Act of 1933.
In the year 1917, a survey map of the Municipality of Howrah was published by the Government of Bengal and on that map is shown a longitudinal space marked Dharumtollah Road. From the map it will appear, though it is not conclusive, that Dhuramtolla Road is a public road.
Sec. 295(1) of the Howrah Act I have referred to above provides:
“All public streets and squares (not being the pro party and kept under the control of the Government or the Commissioners for the Port of Calcutta), including the soil, sub-soil, and the road-drains, foot, ways, pavements, stones and other materials of such streets and squares, and all erections, materials, implements and other things provided for such streets or squares shall vest in and belong to the Commissioners.”
Sec. 300 of the same Act provides:—
“(1) The Commissioners may, after giving notice to him, require any person to remove any wall and may of their own motion remove any fence, rail, post, platform, or other obstruction, projection or on croachment (not being a portion of a building or fix ture referred to in section 299) which has been erected or set up, and any materials or goods which have been deposited, in a public street or in or over any drain or aqueduct in a public street, whether the offender be prosecuted under these provisions or not; and the offender shall be liable for the payment of the expense of such removal
(2) When under sub section (1), the Commissioners cause any wall to be removed or remove any other obstruction, projection or encroachment from land which forms part of a public street no compensation shall be payable, but the Commissioners shall be bound to provide proper means of access to and from the street if none exists already.”
In the year 1934, the Kedar Nath Jute Manufacturing Company, Limited took a lease of certain premises Nos. 38, 39 and 40, Dhurrumtolla Road. In 1936 the Kedar Nath Jute Manufacturing Company purchased premises No. 287, Grand Trunk Road. According to them in the same year they built a wall which, the Surveyor of the Municipality says, obstructs Dhurrumtollah Road or Lane which according to him is a Municipal road. The Surveyor also says that the wall was built not in 1936, but in 1939.
The Kedar Nath Jute Manufacturing Company has as its managing agents a firm called Babulal Rajghoria & Co., Ltd., of which Mr. Babulal Rajghoria is the Managing Director. On February 22nd, 1939, the Municipality gave a written notice to Mr. Babulal Rajghoria pursuant to sec. 300 of the Calcutta Municipal Act as applied to Howrah which I have quoted above, requiring Mr. Babulal Rajghoria to remove a wall alleged to have been built across Dhurramtollah Road or Lane within fifteen days or to lodge objections within seven days. On March 4th, 1939, Mr. Rajghoria wrote to the Engineer of the Howrah Municipality as follows:—
“With reference to your notice under sec. 300 of Calcutta Municipal Act, 1923, dated 22.2.39, the same has been wrongly addressed to me as I am neither the owner nor occupier of premises Nos. 39, 40 & 41, Dhurrumtollah Boad, Salkia,
I am, however, forwarding your notice to Messrs Kedar Nath Jute Manufacturing Co., Ltd. the party concerned for reply of the same, if they are at all concerned with your notice.”
On the same day a letter was written by the Managing Agents of the Kedar Nath Jute Manufacturing Company to the Engineer of the Howrah Municipality as follows:—
“Your notice under sec. 300 of Calcutta Municipal Act of 1923, dated 23.2.39, has been forwarded to us for by reply Mr. Babulal Rajghoria.
In reply we have to say that we have not constructed any pucca wall encroaching and obstructing your road land of Dhurrumtollah Lane as wrongly mentioned in the said notice, which please note and oblige.”
On April 4th, 1939, the Engineer of the Municipality wrote to the Director of Babulal & Co., Ltd., Managing Agents, a letter headed “Re:—Encroachment by the construction of a pucca boundary wall upon Dhurramtollah Lane”:—
“With reference to your letter, dated, the 4th March, 1939, regarding above, I have to request yon to send your representative to this office any working day between the hours of 3 and 4 p.m except Saturday to fix a date and time for pointing out the encroachments.”
On April 24th, 1939, the Kedar Nath Jute Manufacturing Company wrote to the Municipality telling them to take any proceedings they liked. On June 15th, 1939, the Municipality wrote to Babulal & Co., Ltd., the Managing Agents, withdrawing the notice dated February 22nd, 1939, because they said it was served on the wrong person.
On August 9th, 1939, the Municipality served a notice under sec. 300 of the Calcutta Municipal Act, Howrah, on the Jute Company, requiring them to remove the wall within fifteen days or to make representation within seven days. On August 24th, 1939, the period of fifteen days had expired and apparently nothing had been done to remove the obstruction or to discuss the matter, whereupon on November 2nd, 1939, the Howrah Municipality, through their Surveyor, filed a complaint before the Assistant Magistrate under sec. 488, 300 of the Calcutta Municipal Act as applying to Howrah, in respect of the failure of the Kedar Nath Jute Company to comply with the requisition containing a notice to the Kedar Nath Jute Company, dated August 9th, 1939, referred to above.
Sec. 488 of the Calcutta Municipal Act, Howrah, provides:
(1) “Whoever commits any offence by—
(a) contravening any provision of any of the sections, sub-sections, clauses of sections, provisos or rules of the Calcutta Municipal Act, 1923, as in force in the Municipality of Howrah, mentioned in the first column of the following table, or
(b) contravening any provision of any rule made under any of the said sections, sub-sections, clauses, or provisos, or
(this is the relevant provision)
(c) failing to comply with any direction lawfully given to him or any requisition lawfully made upon him under any of the said sections, sub-sections, clauses provisos or rules,
shall be punished with fine which may extend to the amount mentioned in that behalf in the third column of the said table.”
The penalty provided in this particular instance is a fine of Rs. 50 or a daily fine of Rs. 10.
The matter came before a First Class Magistrate of Howrah who dismissed the complaint and acquitted the accused under sec. 245 of the Code of Criminal Procedure. His reasons are as follows:
“The points are (1) whether this complaint is barred under sec. 534 of the Calcutta Municipal yet for not lodging the complaint within three months after the Municipality came to know of the alleged encroachment and (2) whether the encroachment alleged to have been made was on a public pathway.
It appears from the evidence of P.W 1, that on 29.1.39, the existence of the alleged encroachment came to the notice of the Municipality. Ex. B which is the accused company's reply to the notice requiring removal of the encroachment is dated 4.3-39 and Ex. shows that the Engineer of the Municipality wrote to the accused regarding the encroachment on 4-4.39. The complaint was filed in Court on 2-11.39. Thus it was filed beyond the statutory period of three months and is thus barred under sec. 534 of the Calcutta Municipal Act. As the case fails on the point of limitation it is unnecessary to decide the second point.”
sec. 534 of the Calcutta Municipal Act provides as follows:
(1) “No person shall be liable to punishment for any offence against this Act or against any rule or by-law made thereunder, unless complaint of such offence is made before a Magistrate within three months, or, if the offence be against the provisions of sec. 136, within six months, next after—
(a) the date of the commission of such offence, or
(b) if such date is not known or the offence is continuous in its nature, the date on which the commission or existence of such offence was first brought to the notice of the Corporation or the Executive Officer.”
The learned Magistrate appears to have been under the impression that the offence alleged was the building of a wall. In that he was in error. The offence alleged was failure to comply with the notice of the Municipality requiring the Jute Company to remove the wall which is a different thing altogether. It is quite true that the Municipality, through its officials, knew of the existence of the wall in February, but it was in March that they gave notice to the Managing Agents to remove the wall. Mr. Babulal Rajghoria, who was the Managing Director of the Managing Agents, said that he was not the owner or the occupier. In that it seems to me he was correct. The Managing Director of the Managing Agents can hardly be said to be in occupation of the premises or the owner and I doubt whether the Managing Agents can be said to be either the owners or the occupiers of the premises. The persons who own and occupy the premises are the Company. I am of the opinion that the first notice to the Managing Agents was not addressed to the proper persons. The Company which own the property cannot, as far as I understand it, evade responsibility for acts in relation to their fixed property by transferring their management to the Managing Agents. Apparently, the Municipality thought over Mr. Rajghoria's objections as objections of the Managing Agents, and then decided to proceed against the Company. In so doing they were right.
The summons was served on the Manager of the Kedar Nath Jute Company's works and he or someone on his behalf appeared in these proceedings. The second requisition relating to the removal of this obstruction of the wall was sent to the Company on August 9th, 1939. Fifteen days were allowed in the notice to remove the obstruction. The Company did not remove it either within fifteen days or at all. Consequently the offence was one for not complying with the notice to remove the obstruction.
That offence began on or about August 24th, 1939; these proceedings were begun on November 2nd, 1939, and, therefore, within the three months which is set as the limitation time for prosecution under sec. 534 of the Calcutta Municipal Act as applied to Howrah. The learned Magistrate who tried the matter in the first instance was clearly wrong.
The Municipality then made an application to the District Magistrate under sec. 438 of the Code of Criminal Procedure for a reference to this Court. The District Magistrate, in my view, took a correct view of the offence which was alleged. He said:
“I am inclined to agree with the Municipality in this particular contention that it is the service of notice which is the date from which three months would commence. It is impossible to say on what date a Municipality becomes cognisant of an encroachment and in many cases it may not be immediately desirable to start prosecution. The offence is not the encroachment but the refusal to obey a legal) notice. This may be brought to the notice of the Police Magistrate for future reference.”
Then he went on—
“As regards the present case it is not of sufficient public importance to send up to the High Court. The Municipality is hardly affected. The company has leased the land and if ever the lease reverts to the local zemindar (who appears to be behind this application) the question of the right of way will then arise. At the present moment a road leading nowhere in the middle of a Mill would appear to be a municipal encumbrance. The application is, therefore, rejected.”
As regards the second part of this judgment, in my view the District Magistrate is wrong. If there is an encroachment on a public road in Howrah, that is not a matter to be dismissed lightly. The provisions of the Calcutta Municipal Act in Howrah were intended for the good government and well-being of the people of Howrah and the people who use the public roads of Howrah—very important features for the well-being of any town. The encroachments on them are not lightly to be permitted.
In my view, the learned Magistrate in coming to the conclusion that he did, namely, that the complaint was time-barred and therefore the question whether Dhurrumtollah Road was a public road did not arise, was in error. The correct way for the Magistrate to deal with it was first to ascertain whether the road in question was a street in Howrah. If it was not, no further questions arose and the complaint would stand dismissed. If, on the other hand, he came to the conclusion that the road in question was a public street within the meaning of sec. 300 of the Calcutta Municipal Act, Howrah, it was for him to determine whether an obstruction was caused which ought to have been removed and whether there was a failure to remove it. If so, and proceedings were brought within a period of three months from the failure, then it was his duty to convict the accused of the offence which was alleged against him under sec. 488/300 of the Calcutta Municipal Act.
The acquittal of the accused must, in my opinion, be set aside and this mater must go back to the Court below to be dealt with by some other Magistrate in Howrah according to law as we have endeavoured to explain.
I wish to say once again that infringements of Municipal Acts are not to be treated lightly. Municipal Acts are intended for the well-being and health of the community.
Let the counter-affidavit filed to-day be kept on the record.
Bartley, J.:— I agree that this Rule must be made absolute, the order of acquittal set aside and the case remanded to the Court below for a proper trial in accordance with the direction indicated in the judgment of my Lord the Chief Justice.
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