EXECUTIVE OFFICER, BERHAMPUR MUNICIPALITY Vs. BRUNDABAN SAHU

JUDGEMENT

(1.) Executive Officer, Berhampur Municipality (hereinafter referred to as the 'complainant') calls in question legality of order passed by learned Sub -Divisional Judicial Magistrate, Berhampur (in short, the 'SDJM') holding that there was no contravention of the provision of Section 290(1)(w) of the Orissa Municipal Act, 1950 (in short the 'Act') by the respondent Brundaban Sahu (hereinafter referred to as 'accused') as alleged by Municipality.

(2.) BACKGROUND facts necessary for disposal of appeal are as follows : On 7 -4 -1984 a complaint was filed by complainant alleging that on 20 -9 -1933 and thereafter accused was found to have installed three motors of different horse power in his saw mill at Aska Road in Berhampur town without obtaining licence for the year 1983/84 as required under Section 290 of the Act. On 27 -7 -84, accused had filed an application before the Chairman of Municipality admitting his guilt and expressing his willingness to deposit the requisite fees as is evident from the application (Ext. 1). Since accused on installation of three motors without obtaining licence, there was contravention of provision of Section 290(1) of the Act, attracting penal consequences in terms of Section 383 of the Act.

(3.) THE accused pleaded innocence. Learned SDJM held that Sub -section (1) of Section 290 of the Act mandates a notification by the Municipal Council notifying places within the Municipality where no actively of any of the purposes indicated in the section itself shall be carried on, except in accordance with conditions specified in the licence It was observed that there was no evidence to show that any notification in that regard had been notified in order to attract application of Section 290 of the Act. Additionally it was held that complaint was filed beyond the period prescribed under Section 347 of the Act.