EXECUTIVE OFFICER, BERHAMPUR MUNICIPALITY, BERHAMPUR Vs. URMILA SATPATHY

JUDGEMENT

(1.) This is an appeal by the Executive Engineer, Berhampur Municipality against the order of the learned Sessions Judge, Ganjam, Berhampur acquitting the respondent on setting aside the order of conviction and sentence passed by the learned Judicial Magistrate Second Class, Barhampur under Sec. 385-A of the Orissa Municipal Act.

(2.) The appellant -Municipality's case, in brief, is that, basing on the report Ext. 1 of the Amin, P.W. 2, the Town Surveyor of the Municipality, P.W. 1, having found that respondent constructed a building in Laxmi Narasingha Sahi in Ward No. 1 of Berhampur Municipality without obtaining permission and, as such, made an endorsement as per Ext. 1/1. The report was submitted to the Additional Executive Officer of the Municipality. A notice under Sec. 273 of the Orissa Municipality Act was served on the respondent as per Ext. 2, but in spite of receipt of the notice, he remained silent. Since no reply was received from her, the provisional order as per Ext. 2 was confirmed by the Execuitve Officer as per Ext. 4 and the said order was communicated to the respondent under Ext. 3. The Town Surveyor, who is authorised by the Executive Officer to lodge, prosecution lodged a complaint against the respondent in Court of Judicial Magistrate Second Class, Berhampur, who took cognizance and issued summons for appearance. The learned trying Magistrate, relying on the prosecution witnesses and the documents exhibited in the case, found that the accused is guilty and accordingly convicted the accused under Sec. 385-A of the Orissa Municipal Act for making unauthorised construction on 2.7.1983 and sentenced her to pay a fine of Rs. 100.00 and in default of payment, to undergo simple imprisonment for three days. Being aggrieved by the order of the learned Judicial Magistrate Second Class, Berhampur, the accused respondent preferred Criminal Appeal No. 288 of 1984 before the learned Sessions Judge, Berhampur, who allowed the appeal, set aside trial Court order and passed an order of acquittal. The Municipality through its Executive Officer has preferred this appeal against the judgment of the learned Sessions Judge in setting aside the conviction and the sentence passed against the accused-respondent and acquitting her from the charges.

(3.) Heard Mr. N.K. Mishra, learned Senior Counsel appearing for the Executive Officer, Berhampur Municipality and Sri B.B. Ratho for the accused-respondent. The thrust of the argument of Sri Misra for the appellant is that the learned Sessions Judge has misconstrued and misconceived the provision of Sections 267 and 268 of the Act, inasmuch as the deeming provisions contemplated under Sections 267 and 268 of the Act are not applicable in the facts and circumstances of the case unless and until it is proved by a party that an application was made under Sec. 264 of the Act and a site plan and a building plan with specification as required was duly filed, but no refusal order has been communicated, this deeming clause has no application. The accused-respondent having failed to prove that she has complied with the provisions of Sec. 264 of the Act, the question of deemed permission as inferred by the learned Sessions Judge is not available and, as such, the order of acquittal is illegal and liable to be set aside. Mr. Misra has drawn my attention to a decision reported in AIR 1980 Cal 17, (Latika Co-operative Housing Society Ltd. Vs. Commissioner, Corporation of Calcutta ), wherein a pari materia provision in the Calcutta Municipal Corporation Rules (Rules 56) was under consideration. Their Lordships in the aforesaid judgment took the view that for obtaining the benefit of a deemed sanction under Rule 56, the application must be a valid application containing the site plan and other relevant particulars as required under the said Rules. If for want of such essential relevant particulars the application could not have been considered on merit and sanction accorded by the Municipal Corporation, in such an event, deemed sanction under Rule 56 cannot be accused. Yet in another decision reported in AIR 1988Cal 161 (M/s, Kewal Court (Pvt.) Ltd. Vs. State of West Bengal), a similar question was considered and his Lordship, relying on the decision in AIR 1980 Cal 17 (supra), observed that Rule 56 of the Calcutta Municipal Corporation Rules relaxes the requirement of obtaining prior per mission to execute the works mentioned in the application which has not been disposed of within the period prescribed by Rule 55, but such an applicant is not entitled to infringe the provisions of the Calcutta Municipal Act including those contained in Schedule XVI. A plea, which is deemed to have been sentenced under Rule 56, does not authorise any violation of the Municipal Building Rules. On the facts of the case the, Court having found that there were some infirmities in the plan which violated the provisions of the Act and the Bye-law in constructing the structure as alleged, It held that the plan was not duly filed by the petitioner to obtain permission and sanction of the construction under the said Rules, to attract the deeming clause in the rules. Mr. Misra has also drawn my attention to a. Division Bench decision of the Delhi High Court reported in AIR 1962 Delhi 550, (Raghbir Singh Vs. Municipal Corporation of Delhi). In that case, the Delhi Municipal Corporation Act Sections 337 (1) and 333 read with Bye laws), 1959 was being considered in the light of the deemed sanction as contemplated under Sec. 337-I of the said Act. Their Lordships of Delhi High Court have held that the deemed sanction under Sec. 337 has very serious implications and if the Corporation is to be tied down to a deemed sanction, it is necessary that each of the details required by Sec. 333 of the Statute must be complied with at least certainly and substantially, because the purpose of the Act is that if a notice as required by the Act has been given, the Corporation should not be allowed to sleep over it and if it does so, it would run the risk of a sanction having been deemed to be given, it was further observed that when so serious are the consequences, it would be the mandate of law that the requirement of giving the notice under Sec. 333 of the Act, which is a condition precedent for the deeming sanction to be read under Sec. 337(1) of the Act should be strictly construed.