EXECUTIVE OFFICER BARIPADA Vs. MAHESH PRASAD SAHA

JUDGEMENT

(1.) The Municipality is the appellant assailing an acquittal in a prosecution under Section 385 -A of the Orissa Municipal Act, 1950 (hereinafter referred to as 'the Act') of the respondent. The prosecution report was filed on 17 -6 -1983 alleging the respondent to have indulged in unauthorised construction without obtaining sanction of plan from the Municipality and in spite of having received the notice Ext. 4 issued on 2 -4 -1983 directing to stop further construction and to demolish the unauthorised construction, yet neither to have stopped the construction nor to have demolished the construction already made. It is the case of the Municipality that on receipt of Ext. 4 the respondent also addressed a letter Ext. 6 on 4 -4 -1983 intimating of having stopped construction and that he was taking steps to get the plan approved and to produce the same before the Executive Officer but that in spite of the same he carried on the construction and completed the roofing. The learned Magistrate, on analysis of the evidence, held the case of the Municipality to have been otherwise proved but, relying on a decision 42 (1976) CLT 807 (Executive Officer, N.A.C. Hirakud v. Jagannath Mallik), acquitted the respondent holding the complaint to be barred by time having not bean filed within a period of fifteen months from the date of detection, i.e. 30 -3 -1983.

(2.) THE view taken by the learned Magistrate is unexceptionable since the decision relied upon completely clinches the issue that the prosecution under Section 385 -A of the Act is to be brought within the maximum period of fifteen months from the date of commencement of the unauthorised construction and in this case the date of commencement having not been established, the offence could not be brought home.

(3.) THE contention raised does not survive scrutiny of the provisions. Section 385 -A so far as relevant is as follows : 'xx xx if any person to whom a direction is given by the Executive Officer to alter or demolish a building or well under Section 213 -A fails to obey such direction : xx xx shall be liable on conviction to a fine, xx xx' Hence before a prosecution can be launched in terms of the requirement, it is necessary that a direction must have been given by the Executive Officer under Section 273 -A and the notice must have failed to obey the direction. Section 273 -A stipulates that if the Executive Officer is satisfied regarding any of the infractions as enumerated in Sub -clause (i) thereof to have taken place, he has to make a provisional order requiring the owner or the builder to, inter alia, demolish the work done and the provisional order is to be served on the owner of the building together with a notice requiring him to show cause within a reasonable time to be sanctioned therein as to why the order shall not be confirmed. If the owner fails to show cause to the satisfaction of the Executive Officer, he may confirm the order of demolition or modification, etc., as the case may be. That these are the requirements of Section 273 -A also stands concluded by two decisions of this Court in ILR 1973 Cuttack 508 (Sashibhusan Rath v. State and Anr.) and 32(1990) OJD 423 (Dr. Bellarani Dutta v. B.D.A). The order in Annexure -4'in terms is not under Section 273 -A nor was it accompanied with a notice as provided under Section 273 -A (2) nor any final order of confirmation of the provisional order under Section 273 -A has been proved. There thus having been no order passed under Section 273 -A, the question of prosecution under Section 385 -A for violation of such order does not survive. The submission of the learned counsel for the appellant therefore fails.