1957 Supreme(Cal) 67

HIGH COURT OF CALCUTTA
Guha Ray, Renupada Mukherjee
G. D. BHATTAR - Appellant
Versus
STATE - Respondent
Criminal Revn.  304  Of  1956
Decided On : MARCH 21, 1957

The principle of Section 23 of the Limitation Act is inapplicable to cases where the period of limitation is laid down in special or local Acts.

Headnote:

GUHA RAY, J. ( 1 ) THESE three revision cases arise out of three prosecutions under Section 73 of the Indian. Mines Act. There are altogether six petitioners, the first five of whom are common to all the three cases. The sixth petitioner in Cases Nos. 304 of 1956 and 297 of 1956 is K. N. Nag, whereas in the third case, namely Case No. 303 of 1936 the sixth petitioner is K. P. Chatterjee. Admittedly the first four petitioners are the directors of Messrs. Bhattars Agency, Ltd. , Managing Agents of Ghusick and Muslia Collieries Ltd. , owners of Kalapahari Colliery and the Muslia Colliery. M. L. Daga. the fifth petitioner in all the cases is the Agent of the Kalapahari Colliery and the Muslia Colliery and K. N. Nag, petitioner No. 6 in the first two cases is the Manager of the Kalapahari Colliery. K. P. Chatterjee is the Manager of the Muslia Colliery.

Fact of the Case:

The first prosecution was for contravention of Sub-rule (1) of Rule 3 of the Coal Mines Pit-head Bath Rules. 1946 in respect of the Kalapahari Colliery. The second prosecution was for contravention of Sub-rule (a) of Rule 3 of the Mines Creche Rules. 1946 in respect of the Kalapahari Colliery and the third prosecution was for contravention of Sub-rule (a) of Rule 3 of the Mines Creche Rules. , 1946 in respect of the Muslia Colliery.

Finding of the Court:

The three cases were disposed of by two Magistrates but the appeals were disposed of by one Judge. The findings of the trial courts and the appellate court are that there was a contravention of the relevant rules in each of these cases and for these contraventions not merely the directors or the Managing Agents, who were in the position of owners, but also the Agents and the Managers were liable. On this view all the petitioners were convicted and sentenced to varying amounts of fines. There was also an order under. Section 78 of the Indian Mines Act that the accused persons must complete construction of the pit-head baths and the creches in the two mines by the 31-3-1956. It is admitted on behalf of the petitioners that up to the time of the prosecution the pit-head bath in the Kalapahari Colliery and a creche in either of the two collieries, namely the Kalapahari Colliery and the Muslia Colliery were not installed. That there was thus a contravention of the relevant rules is also not disputed.

Issues: None

Ratio Decidendi: The question to be considered here is whether such a nullification of the provision of limitation was intended by the legislature. The prosecution in arguing this way really invoked the aid of the principles laid down in Section 23 of the Limitation Act without actually referring to it. That section is in the following terms:"section 23.--In the case of a continuing breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues". A continuing offence is certainly a continuing wrong independently of contract so that if this section were applicable to the present cases the prosecution would undoubtedly be right in saying that there will practically be no limitation of a prosecution under Section 79 of the Mines Act so long as the duty imposed by the rules under the Mines Act was left undischarged. Section 29 (2)', however, of the Limitation Act itself provides as follows:"29 (2 ). Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period Of limitation prescribed for any suit, appeal or application by any special or local law-- (a) the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply. "mr. Banerjee on behalf of the State argues that the two sentences in Sub-section (2) of Section 29 must be read together and that the second sentence thereof is really dependent on the first; in other words, his contention is that the second part of Sub-section (2) covers only those cases which are covered by the first and does not go beyond that. There is, however, nothing in the second part of the section even to suggest that it is limited to only those classes of cases which are covered by the first part. On the other hand, the second part of Sub-section (2) is couched in such general terms that it will be nothing short of doing violence to the language of the section to hold that the second part is restricted to cases where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule. As a matter of fact it is well-known that some of the general provisions of the Limitation Act are always applied even to cases for which the limitation is prescribed in special or local Acts and if the second part of Sub-section (2) were not of such general application, those provisions would not really be available for determining or computing the period of limitation in such cases. I have, therefore, no manner of doubt that Mr. Banerjee's contention as regards the construction of Sub-section (2) of Section 29 is not correct and I am clearly of opinion that the second part of Sub-section (2) of Section 29 is of general application and is not limited to cases where any special or local Act prescribes for any suit, appeal or application a period of limitation different from the Period prescribed therefor by the first schedule. If that is so, Section 23 of the Limitation Act is clearly made inapplicable to cases where the period of limitation is laid down in special or local Acts. The Mines Act is certainly a special Act dealing with mines, so that Section 23 of the Limitation Act is expressly made inapplicable to cases under the Mines Act. That being so, the question arises whether the Court will be entitled to invoke the aid of the principles laid down in Section 23 of the Indian Limitation Act although that section is in express terms made inapplicable to such cases. Although the Limitation Act has made it inapplicable to certain cases, a special or local Act may, therefore, very well either make it applicable or may incorporate the principles enunciated there so as to make it applicable but that has not been done in the Mines Act. If a principle similar to the point enunciated in Section 23 of the Indian Limitation Act existed apart from and independently of Section 23 of the Indian Limitation Act, there is hardly any sense in incorporating such a principle in Section 23 of the Indian Limitation Act and it is still more meaningless to provide by Section 29 (2) of the Limitation Act that the principle of Section 23 would be inapplicable in certain cases' for even if Section 23 is expressly made inapplicable, the principle existing independently and apart from Section 23 would still be applicable.

Final Decision: The order under Section 78 of the Mines Act must also be set aside.