BHARAT SAHU Vs. THE EXCUTIVE OFFICER, MUNICIPALITY

JUDGEMENT

(1.) THE order of conviction and sentence passed by the learned Sub -Divisional Judicial Magistrate, Berhampur in a proceeding under a Section 385A of the Orissa Municipal Act, 1950 (in short the Act), is the subject -matter of challenge in this revision application.

(2.) SHORN of unnecessary details, the case of the complainant -municipality is that the Petitioner had made unauthorised constructions, without requisite permission from the municipality, thereby attracting culpability under the provisions of Section 385A of the Act. The Petitioner's stand was that the construction was made after obtaining due permission from the municipality; there was no notice served before initiation of the proceeding which was in violation of the provisions of Section 273A of the Act; and in any event the Petitioner having acted bona fide the proceeding is not maintainable.

(3.) IN support of the revision application, it has been strenuously urged that the conduct of the municipality itself goes to show that it had led the Petitioner to believe that permission had been granted, it is also additionally urged that the Additional Executive Officer had .no competence to file the prosecution report and, therefore, the proceeding was rendered otiose on account of unauthorised initiation of the proceeding. Reliance was placed for this purpose on an unreported decision of this Court in Criminal Appeal No, 152 of 1985 (disposed of on 4 -5 -1990). The fine imposed was characterised as heavy. Mr. Y.S.N. Murty, learned Counsel appearing for the opposite party submits that the presumption of permission is not available in view of the specific provisions of the Act. Further, the ratio of the decision in the case referred to above by the learned Counsel for the Petitioner has no application, because in the said case the prosecution report was submitted by the Town Surveyor, and the trial Court had recorded a finding regarding absence of authorisation on behalf of the said functionary of the municipality to initiate the prosecution. It was also submitted that fine as imposed is rather liberal considering the limits indicated by the statute.