PUBLIC PROSECUTOR Vs. SMVELLAIYA MUDALIAR

JUDGEMENT

(1.) This is an appeal by the Public Prosecutor against the acquittal of the respondent of an offence under the District Municipalities Act with which he was charged. On 14 February, 1946, the notice, Ex. P-5, was issued to him under Section 216(1) and (2) of the Madras District Municipalities Act indicating certain defects in construction that were noted during the inspection of his house which were said to be in contravention of the building rules. He was called upon to rectify these defects within a week from the date of the receipt of the notice and was warned that action including prosecution would be taken under the provisions of the Act. Section 216 contemplates that along with this provisional order a notice also should be issued requiring the owner to show cause within a reasonable time to be named in the said notice why the order should not be confirmed and under Sub-section 3 of that section if the owner fails to show cause to the satisfaction of the executive authority, the executive authority may confirm the order with any modifications he may think fit to make. In this case notice to show cause and the confirmation order unfortunately were not filed but it would appear they were filed along with the charge sheet and the Magistrate finds that a notice on the above lines was issued on 18 February, 1946, and served on the petitioner's son on 19 February, 1946, that the terms of the notice not having been complied with within the prescribed time, the provisional order was confirmed by the Com- missioner on 5 April, 1946, and that order was served on the petitioner on the 13 April, 1946. As the order was not carried out the present prosecution was launched, the charge sheet having been filed on 3 June, 1946.

(2.) The petitioner was acquitted on two grounds : Firstly, that the notice was served upon the son and consequently the petitioner could not be held liable. This contention is now given up by the learned advocate for the petitioner since admittedly the petitioner is the owner of the property. The second ground upon which the accused was acquitted was that the prosecution is barred by limitation being more than three months after the offence was committed. The learned Magistrate regarded the date of service of the provisional order namely 19th February, 1946, as the date of the commission of the offence and held that more than three months had elapsed by the time the charge sheet was filed. This view is clearly erroneous. Under Section 216 the owner has the right after the service on him of the provisional order to show cause within the prescribed time why the order should not be confirmed. It would be futile to say that while giving him that right he would still be deemed to have committed an offence as soon as he received the provisional order and the notice to show cause. It is only after the expiry of the prescribed time and on failure of the owner to show satisfactory cause that the provisional order can be confirmed and an offence can be deemed to be committed only after the passing of the confirming order and its service upon the owner. Section 317 provides that if any person to whom a direction is given by the executive authority to alter or demolish a building under Section 216 fails to obey such a direction the owner would be liable to be convicted and from the language of the section, it is manifest that the final or confirming order passed under Section 216(3) that is contemplated and not the provisional order passed under Sub-sections 1 and 2 of Section 216, as providing the starting point of limitation for the commencement of the prosecution. Section 347 requires a complaint to be made by the executive authority within three months of the commission of the offence and in the present case having regard to the right given to the owner to show cause against the provisional order it must be held that the offence was committed only after the passing of the confirming order and not until then. That order having been served on the owner on the 13 April, 1946, the prosecution is within the time prescribed in Section 347.

(3.) The learned advocate for the respondent argues that Ex. P-5 does not amount to a provisional order and that no notice to show cause and no confirming order was served upon him. None of. these contentions is tenable. A copy of the confirming order under Section 216(3) acknowledged by the petitioner's son is available on record.