CHIEF OFFICER MUNICIPAL COUNCIL Vs. HEERABAI

JUDGEMENT

(1.) THE Chief Officer, Municipal Council, Osmanabad -the Original Complainant in Summary Case No. 1087/87, filed against the present respondent No. 1 has preferred this revision application to challenge the order of acquittal passed by the Additional Sessions Judge, osmanabad, in Criminal Appeal No. 32/88 setting aside the conviction and sentence passed against the respondent No. 1 in Criminal Appeal no. 32/82.

(2.) BRIEFLY stated, facts giving rise to this revision application, are as under: the present applicant filed a complaint against the present respondent No. 1 that she had put up an illegal construction on plot No. 64 on 31-12-1986, as she had put up tin-shed without obtaining any permission from the Municipal Council. The present applicant came to know about the said illegal construction on the basis of an application made by Swamy and Mehboob and thereafter sanitary Inspector was deputed to visit the spot and submit the report. The Sanitary Inspector after inspecting the spot submitted his report on 1-1-1987 that the present respondent No. 1 had erected a tin-shed over survey No. 14 belonging to Swamy and Mehboob and therefore, a notice was issued to the respondent no. 1 on 9-1-1987 by the Municipal Council to remove the said construction consisting of a tin-shed within 15 days and she was further informed that if she did not comply with the said directions, she would be liable for action. It appears that thereafter again the Sanitary Inspector was directed to visit the spot and ascertain as to whetrer the notice was complied with or not. Accordingly, the Sanitary Inspector after visiting the spot submitted his report on 30-1-1987 that the construction was not removed. It appears that then the Municipal Council directed the Sanitary Inspector on 4-2-1987 to remove the construction within a week and report about the same. However, it appears that on the same day the Sanitary inspector was further intimated by a stay order that he should not remove the construction. It appears that thereafter again Mahboob applied to the Municipal Council on 6-2-1987 and requested the municipal Council to direct the present respondent No. 1 to remove the construction. The President, Municipal Council thereafter ordered to proceed against the respondent No. 1 accordance with law and according to the said order passed on 20-2-1987 the present revision petitioner filed complaint in the Court of Judicial Magistrate, First Class, osmanabad, under Section 296 (2) of themaharashtra Municipalities Act and Section 53 of the Maharashtra "regional Town Planning Act.

(3.) IT is an admitted position that the construction was erected by the present respondent No. 1 and that too without obtaining necessary permission. Both the Courts below have also given a finding to that extent and, therefore, it is not urged before me that the construction was removed or not and such construction, as claimed by the present revision petitioner in the complaint, was put up by the present respondent No. 1. Therefore, it is not necessary to consider the said factual aspect in this revision petition. The trial Court on the basis of the material placed before it found that the present respondent No. 1 had erected a construction consisting of a shed on the plot No. 64 in the land survey No. 14 without the permission from the Municipal Council, Osmanabad and convicted her of the offence punishable under Section 189 (8) of the maharashtra Municipalities Act and sentenced her to pay a fine of Rs. 500 in default S. I. for 2 months and further ordered the present respondent no. 1 to remove she said construction with intimation to the Municipal council, Osmanabad, within a period of one month from the date of order, in default of the accused removing the said construction after the stipulated period she shall be liable to pay penalty at the rate of Rs. 10 per day till the said construction is removed. Being aggrieved by the said order of conviction and sentence passed by the trial Court against the present respondent No. 1 she preferred an appeal bearing Criminal Appeal no. 32/88 to the Sessions Court, and the learned Additional Sessions judge, who heard the appeal allowed the same holding that the complaint filed by the present revision petitioner on 25-9-1987 was barred by limitation and, therefore, the prosecution must fail. Keeping with the said finding, the learned Additional Sessions Judge acquitted the present respondent No. 1 setting aside the order of conviction and sentence passed against the present respondent No. 1. Being aggrieved by the said order of the learned Additional Sessions Judge, the present revision petition is filed.