MUNICIPAL COUNCIL Vs. GHANASBYAM DAS

JUDGEMENT

(1.) THIS in an appeal against an order of the Additional Sessions Judge, Cuttack acquitting the Respondent who had been convicted in the trial Court under Section 385A of the Orissa Municipal Act, 1950 and sentenced to pay a fine of Rs. 500/ - and in default to undergo simple imprisonment for 5 months and also to pay daily fine of Rs. 5/ - till he obtains necessary permission from the Municipality. The Cuttack Municipality launched a prosecution against the opposite party (Respondent) under Section 385A of the Orissa Municipal Act alleging this he started construction of a pucca building on holding No. 619 in Ward No. 3 and completed the construction of double storeyed building without obtaining permission from the Municipality as required under Section 264 of the Act.

(2.) IT is not disputed that the Respondent had constructed an upstairs building on holding No. 619 without containing permission therefore from the Municipality and that the construction began in February, 1963 and was completed within a few days thereafter. Section 264 provides that if any person intends to construct or reconstruct a building he shall send to the Executive Officer an application in writing for the approval of the site, together with It site plan of the land; and an application in writing for permission to execute the work together with a ground plan, elevations and sections of the building and specification of the work. Section 266 provides that the construction or reconstruction of a building shall not be begun unless and until the Executive Officer has granted permission for the execution of the work. Section 207 enjoins that within thirty days after the receipt of any application made under Section 264 the Executive Officer shall by written order either approve the site or grant such permission or refuse such permission on one of the grounds mentioned in Section 269. Section 26 provides that if within the period prescribed by Section 267, the Executive Officer has neither given nor refused his approval, the Municipal Council shall be bound, on the written request of the Applicant, to determine by written order whether such approval or permission should be given or not. Sub -section (2) of Section 268 says that if the Council does not within one month from the receipt of such written request deliver to the Applicant an order either granting or refusing such approval or permission, it shall be deemed that the permission has been granted and thereafter the Applicant may proceed to execute the work.

(3.) IT would thus be apparent that Ext. 3 can under no circumstances be construed as an application under Section 264 because the plan and other particulars required there under had not been submitted. Even assuming that Ext. 3 can be treated as an application under Section 264, the Respondent, when he failed to receive any reply from the Executive Officer ought to have made an application to the Municipal Council as contemplated under Sub -section (1) of Section 268 which, admittedly, he has not done. In the circumstances, therefore, his contention on this point has absolutely no force and has rightly been rejected by the learned Additional Sessions Judge.