PRANNATH SAMANTARAI Vs. BHAGIRATHI SAHOO

JUDGEMENT

(1.) THIS is an appeal by the Talcher Notified Area Council against an order o acquittal passed by the Sub-divisional Magistrate of Talcher, in a case under section 386 of the Orissa Municipal Act, for contravention of the provisions of section 290 (1) (s) of the said Act.

(2.) THE respondent was alleged to have carried on timber business within the limits of Talcher notified Area without obtaining a license--as required by Section 290 (1) (d) of the said Act. The learned Sub-Divisional Magistrate held, on facts, that the respondent carried on the timber business without a license within the limits of talcher Notified Area. But he acquitted him, relying on a Bench decision of the court in Gurucharan Singh v. Executive Officer, Jeypore Municipality, 29 Cut L T 611 where it was held that before prosecuting a person for contravention of any of the clauses of Sub-section (1) of Section 290 of the Municipal Act, it must first be established that the local authority concerned issued the requisite Notification under Sub-section (1) of that Section. The expression 'notification' has been defined in Clause (28) of Section 2 of the Orissa General Clauses Act as meaning a notification in the gazette. Section 26 of the Orissa General Clauses Act further says that if any Orissa Act directs that any order shall be notified, then unless the act otherwise provides, such notification shall be deemed to be duty made if it is published in the gazette. It was admitted in that case and also in this case that there was no publication in the Gazette in the manner required by Sub-section (1)of Section 290. The Second Proviso to that Sub-section further says: "provided further that no notification under this sub-section shall take effect till sixty days from the date of publication thereof. " the learned lower Court held that the respondent was not bound to obtain a license for selling and storing timber for sale within the Notified Area of Talcher, inasmuch as the order of the Municipal Council under Sub-section (1) of Section 290 was not duly notified as required by that sub-section.

(3.) MR. Palit, on behalf of the Notified Area Council invited my attention to Rule 602 of the Orissa Municipal Rules which runs thus : "602--Every notification required to be published by the Municipal council under the Act, shall be published in Oriya by affixture on the notice board of the Municipal Office concerned and also proclaimed by beat of drums. (2) Every notification required to be published by the State Government in the prescribed manner, shall be published in English in the Gazette. " mr. Palit urged that if the provisions of the Orissa Municipal Act are read with the provisions of Rule 602 of the Orissa Municipal rules, the reasonable interpretation would be that where any notification is required to be published by the municipality it need not be published in the gazette and that it would suffice if it is published in Oriya by affixture on the notice board of the Municipal Office and it also proclaimed by beat of drum. In the present case, it is not denied that the notification under Sub-section (1) of Section 290 of the Orissa Municipal Act was duly published by affixture on the notice Board of the Notified Area office and was also proclaimed by beat of drum. Mr. Palit therefore urged that such notification must be deemed to have come into force within sixty days of such publication and proclamation.