EXECUTIVE OFFICER N A C Vs. JAGANNATH MALLIK

JUDGEMENT

(1.) ON 19.2.1973, the Executive Officer of the Notified Area Council. Hirakud, laid a complaint alleging commission of an offence punishable under Section 385 -A of the Orissa Municipal Act (hereinafter referred to as the 'Act') by the respondent on the ground that the latter had proceeded to construct a house without appropriate permission of the Notified Area Council. There was no dispute that requisite permission had not been taken but the accused in his defence pleaded that the construction had begun before the Notified Area Council itself was constituted and. therefore, no permission was necessary for the construction of the building in question. It was further pleaded that the prosecution was barred by limitation prescribed under Section 347 of the Act. The learned Magistrate found that the accused had been convicted on 17.9.1970 in Criminal Case No. III(A) C.C. 172 of 1970 for having commenced construction of the house without requisite permission. According to the trial Court, the prosecution had to be launched within twelve months as required by the proviso to Section 347 of the Act and in view of the special limitation, the prosecution in this case was barred having been launched beyond twelve months from the appropriate dale, Accordingly it acquitted the accused. With leave the Notified Area Council appealed to this Court against acquittal.

(2.) DURING hearing of the appeal before our learned brother B.K. Ray, J. certain decisions of this Court were cited. As our learned brother was not inclined to accept the view expressed in some of those decisions, he asked this matter to be placed before a Division Bench.

(3.) FOR construction of a building, permission is thus a pre -requisite. Under Section 385 -A(a) of the Act, if construction of a building is commenced without requisite permission of the Executive Officer, the offence is committed. Admittedly in this case no permission has been obtained. On the earlier occasion, the respondent was prosecuted for commencing construction of the building without requisite permission and there was conviction. The plea that the construction had begun prior to the constitution of the Notified Area Council seems to be without basis particularly when on the earlier occasion such a plea had not been raised. In view of the position that permission is a pre -requisite and the same has not been obtained, the respondent, if validly prosecuted was bound to be convicted.