EXECUTIVE OFFICER BEHRAMPUR MUNICIPALITY Vs. BISHNU PRIYA BISOI

JUDGEMENT

(1.) This criminal appeal has been filed against the judgment and order dated 7th July, 1987 passed by the 1st Addl. Sessions Judge, Berhampur, in Criminal Appeal No.2/1987 (Criminal Appeal No. 233 of 1986 (GDC) allowing the appeal and setting aside the order passed by the learned Judicial Magistrate Second Class, Berhampur in 3(a) C. C. No. 175 of 1985 convicting respondent No.1 under Section 385-A of the Orissa Municipal Act and sentencing her to pay a fine of Rs.384/- and further imposing daily fine at the rate of Re. 11/- for the period from 22-2-1985 till the date of judgment amounting to Rs.616/- in all to pay a fine of Rs. 1000/-, in default, to undlergo simple imprisonment for three months.

(2.) At the very outset, it is necessary to mention the facts. It was alleged that respondent No.1 had constructed a pucca building at the locality, namely, Nilakantha Nagar Strest in Ward No. 21 within Berhampur Municipal area without obtaining any valid permission or licence from the municipal authority. Neither the date of starting nor completion of the construction of the building was known to the Municipal authority nor the such dates were not disclosed any- where, and only the prosecution was started from the date the municipal officials found that: there was construction which was already completed when they inspected the same on 22-2-1985. It was also not disclosed as to what was the age of the building at the time: of inspection of the same, when the said officials found that the construction was already completed. On the report of the Amin P.W.1, the matter was verified by the Town Surveyor after obtaining necessary order from the Municipal authorities. The prosecution report was filed before the Court of Sub-Divisional Judicial Magistrate, Bertoampur on 2-7-1985 by the Town Surveyor being authorized by the Executive Officer-under Section 99 of the Orissa Municipal Act. The said prosecution report is reproduced as under :-

(3.) In order to prove its case, the prosecution examined three witnesses, namely, P. W. 1-Kasinath Gouda, P. W. 2 - Y. Mohan Rao and P. W.3- Saiba Nayak P. W. 1- Kasinath Gouda, who was working as Amin of the Berhampur Municipality, stated in his deposition that on his inspection on 22-2- 1985 he saw that the accused had already completed the construction of the ground floor of her building without permission of the Municipality. He prepared the report of the spot inspection and rough site plan and submitted the same to the Town Surveyor. Further he stated that he did not know the date of starting of the alleged construction nor its completion and he had also not seen any paper to ascertain who was the owner of the building or the land on which the said building stood. He also did not know the plot number, survey number of the land on the plinth area and the height of the building allegedly constructed unauthorizedly. P. W.2 - Y. Mohan Rao who was working as Town Surveyor had stated in his deposition that he had received the report of P. W. 1 whereafter he had gone to the spot on the same day and found the report to be correct. Thereafter a show cause notice was issued on 27-3-1985, but the accused did not send any reply. Thereafter the A. E. O. issued confirmation order on 13-6-1985 which was received by the accused on the same day. But in spite of all these, the accused remained silent. The complaint was filed by him such power being delegated by the Executive Officer to do so. He filed such authorization also. He had further stated that P. W.1 Amin reported to him in writing on the date of his visit to the spot that the construction work was completed. He further stated that he did not know the patta number, survey number of the plot and also plinth area of the building. He described the height of the building as 11 feet but could not say about the number of room in that building. He had verified the assessment register of the Municipality, from which he came to know that the accused was owner of the building. He had further submitted that he did not know on which date the alleged construction was started. He did not mention in his prosecution report about the date of completion of the building. P. W. 3 - Saiba Nayak, Chairman of the Berhampur Municipality who has stated that he had gone to the house of the accused (respondent Nc(. 1 in the instant appeal) on 29-4-1985 and had served the show cause notice on her. However, there was no endorsement by him that he had given the show cause notice for serving it on the accused. There was also no endorsement about service of show cause notice.