EXECUTIVE OFFICER BERHAMPUR Vs. PADMA CH MISHRA

JUDGEMENT

(1.) Town Surveyor of Berhampur Municipality being authorised by the Executive Officer filed complaint against the accused, respondent herein, alleging that the latter constructed a building in Gajapati Nagar in Ward No. 26 within Berhampur Municipality without obtaining permission as required under the Orissa Municipal Act (for short, 'Act'). He therefore prayed that the accused may be proceeded against for his having contravened the provisions of Section 264 and accordingly he be punished under Section 386 -A of the Act.

(2.) WHEN examined under Section 312, CrPC, accused admitting to have constructed building without approval of the Municipality, pleaded that in 1979 he applied to the Municipal authority for approval of his building plan and when approval was hot accorded, he constructed the building.

(3.) LEARNED counsel appearing for the Municipality contended with vehemence that the findings of the trial Court are against the weight of evidence on record, inasmuch as Exts. 3 and 6 being the order of the competent authority authorising the Town Surveyor to file prosecution against the persons for unauthorised construction of houses under Section 347 of the Act and in view of the admission of the accused that he constructed house without approval of any plan, the only inescapable conclusion would have been that the accused was guilty of the offence with which he stood charged. Learned counsel for the accused, on the other hand, submitted that there having no delegation of power in favour of the Town Surveyor in accordance with the provisions of Section 99 of the Act, the case was not maintainable. He further urged that the case was barred by limitation inasmuch as it was not filed within the period prescribed under Section 347 of the Act.