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Criminal Miscellaneous No. 440 of 1966, decided on 9th January 1968.

Ss. 185, 268 & 271‑Failure to comply with requisition issued by appropriate authority on 19‑1‑64 Nothing in Act to prevent authority from issuing another notice No steps taken to enforce first and second requisition‑Prosecution launched by authority on 30‑10‑65 after non‑compliance of third and final notice issued on 22‑7‑65 ‑‑ Held, justified and within limitation.

Moidi Beaty v. The President, Taluk Board, Manglore A I R, 1932 Mad. 535 rel.

Ch. Muhammad Iqbal for Petitioner.

Mian Ata‑ul‑Haq for Respondent No. 1.

Sh. Abdul Majid for A.‑G. for the State.

Muhammad Siddiq has put in this petition under section 561‑A, Cr. P. C., praying this Court to quash the proceedings pending against him under section 268 of the Cantonment Act, 19‑21, in the Court of Cantonment Magistrate, Lahore.

2. The facts of the case are simple. The petitioner is the occupant of Property No. 1271, Survey No. 88/1538, Sadar Bazar, Lahore Cantonment situated within the notified Bazar Area, Lahore Cantonment and under the management of Cantonment Board constituted under the said Act. On 19th January 1964, the Cantonment Board, Lahore, served a notice on the petitioner under section 185 of the Cantonment Act to demolish the unauthorized construction carried out by him within 30 days. The petitioner did not comply with this notice. Another notice was served on the petitioner and he again failed to comply with it. On 22nd July 1965 a final notice dated 17th July 1965, was delivered to the petitioner, but he did not demolish the unauthorized construction. On his failure to do so the Canton ment Board on 30th October 1965 put in a complaint under section 268 of the Cantonment Act read with section 109, P. P. C.

3. The first question that falls for determination is whether the prosecution is barred by limitation under section 271 of the Cantonment Act. Section 271 of the Act runs as under:

"271. No Court shall try any person for an offence made punishable by or under this Act, after the expiry of six months from the date of the commission of the offence, unless complaint in respect of the offence has been made to a Magistrate within the six months aforesaid."

In the instant case the first notice was served on the petitioner on 19th January 1964 and a final notice was delivered to him on 22nd July 1965. He failed to comply with it and the prosecution was launched on 30th October 1965. The argument of the learned counsel .for the petitioner is that in the instant case the first notice was served on 19th January 1964. Therefore, the offence was committed on the expiry of first notice, viz. on 18th February 1964 and the complaint having been instituted on the 30th October 1965, the prosecution is barred by limitation in view of section 271 of the Cantonment Act. Furthermore the subsequent notices issued by the Cantonment Board were irrelevant as regard the prosecution of the petitioner for non compliance with a notice under section 185 of the Act, as there is no provision which warrants the service of a second notice purported to be given under section 185 of the Act and as such the final notice dated 17th July 1965 cannot be pressed into service for extending the period of limitation under section 271 of the Act. The question then for consideration is whether there is anything in the Cantonment Act that prohibits the issue of subsequent notice when no action has, for one reason or the other, been taken on the first. I can myself see nothing that does so. The offence lies in the failure to comply with a requisition issued by the appropriate authority. If a particular requisition or notice is not enforced, I can find nothing in the Cantonment Act that prevents an appropriate authority from issuing another notice. In the case in hand no steps were taken to enforce the first and the second requisition and it was the third notice after the non‑compliance of which the prosecution was launched Therefore, the authorities were justified to institute the prosecution for failure to comply with the final notice and the complaint having been lodged on 30th October 1965, is within the period of limitation. In this view of mine I am supported by a decision in the case of Moidi Beary v. The President, Taluk Board, Mangalore (A I R 1932 Mad. 535), where Walsh, J. (as he then was) held:‑

"Where although a person having been served with a notice to remove an encroachment under section 159 of the Act has been charged and acquitted in respect of the encroachment, he can yet be prosecuted and convicted in respect of the same encroachment after issuing to him a second notice."

4. The second point taken on behalf of the petitioner was that the alleged unauthorized construction was raised by the petitioner immediately after the transfer of the portion of the house to him and that the construction was raised in the year 1961. Therefore, notice under section 185 of the Act should have been served on him within 12 months from the date of the completion of the construction and as the notice was served after the expiry of 12 months from the date of completion of the alleged unauthorized construction, it did not create any criminal liability. The contention is not devoid of force, but there is no evidence on the record to show the date of the unauthorised construction. It is for the authorities concerned to adduce evidence on this question and on the evidence on the record it would be seen by the learned Magistrate whether the prosecution is warranted under law.

5. In the result I proceed to dismiss the petition.

S.Q. Petition dismissed.

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