EXECUTIVE OFFICER Vs. DAMODAR PANDA

JUDGEMENT

(1.) THIS is an appeal against the order of learned J.M.F.C., Berhampur in 3(a) C.C. No.124 of 1982 acquitting the respondent of the allegation of continuing the offences under Sections 247 and 248 of the Orissa Municipal Act, 1950 even after his conviction for those offences in 3(a) C.C. No.22 of 1982 in the Court of learned C.J.M., Berhampur.

(2.) THE respondent along with one Parsuram Roul (since dead) was prosecuted under Section 383(1) of Orissa Municipal Act, 1950 (herein after referred to as ' the Act) for violation of the provisions of Section 247 and 248 of the Act. The allegation was that they being the owners of Ac.0.85 decimals of land under Survey No.352/2 of Mouza Bhapur under Ward No.14 of Berhampur Municipality sold that land to different persons as house site without obtaining permission and licence from the Berhampur Municipality and also without providing space for road and drain etc. or obtaining layout plan sanction from the Municipality. The respondent and his co -accused pleaded guilty to the above noted allegations and were convicted under Section 383(1) of the Act. Despite the above noted conviction and subsequent notice from the appellant -Municipality, the respondent did not obtain licence or permission from the Municipality, did not obtain layout plan sanction and did not provide space for road and drain for which a second prosecution was launched demanding conviction and sentence under Section 383 (2) of the Act for continuing the offence. The respondent denied the allegation made in the prosecution report. The appellant -Municipality examined the Town Surveyor of the Municipality who proved the previous conviction of the respondent under Section 383 of the Act and also proved the notice issued by the Municipality, applications and correspondences made by the respondent, which were marked Exts.2 to 7. The respondent did not adduce any oral or documentary evidence. Learned J.M.F.C. on consideration of the evidence on record came to the conclusion that the appellant -Municipality failed to prove the ownership of the respondent over the land in question and about the continuance of the offences alleged. He accordingly recorded an order of acquittal in favour of the respondent. The said order of acquittal is under challenge in the present appeal.

(3.) MR . Tapan Kumar Kamila appearing on behalf of Mr. Sanjib Udgata, on the other hand, contends that in an appeal against acquittal the High Court cannot re -analyze the evidence and record its own finding in a way different from the finding of the trial Court. According to him,if two views are possible from the evidence, the view taken by the trial Court has to be honoured and the view which is favourable to the accused has to be accepted. To support his contention, Mr. Kamila relies on the cases of Daya Singh v. State of Haryana, AIR 2001 S.C. 1188 and Ram Swaroop and others v. State of Rajasthan, AIR 2004 S.C. 2943. He submits that in the present case, there is no credible oral or documentary evidence to show ownership of the respondent over the land in question or that he violated the provisions of Section 247 and 248 of the Act.