Municipality v. Manasi Sahoo

For Respondent - Mr. S.D.Das, S.K.Samantray And G.S.Sabat -------- PRESENT:- THE HON’BLE MR. JUSTICE PRADIP MOHANTY ------------------------------------------------------------------------------------- Date of hearing & judgment : 12.07.2006 ------------------------------------------------------------------------------------- PRADIP MOHANTY, J. The appellant has preferred this appeal against the judgment and order of acquittal dated 18.08.1988 passed by the J.M.S.C., Berhampur in 3(a) C.C. No.273 of 1986 (T.R. No.3170 of 1986).

The case of the prosecution, in short, is that on21.12.1985 during the visit of the Municipal Amin (P.W.1), it was found that the accused-respondent was constructing a new house 2 obstructing the public road. It is alleged that the accused-respondent was making the said construction without obtaining prior permission of the appellant. As such, she contravened Sections 264 and 266 of the Orissa Municipal Act, 1950 (hereinafter referred to as ‘the Act’). A prosecution report against the accused-respondent was filed before the S.D.J.M., Berhampur which was registered as 3 (a) C.C. No.273 of

The defence plea was one of stout denial. To substantiate the accusation, prosecution examined two witnesses and exhibited six documents. P.W.1 is the Amin and P.W.2 is the Town Surveyor of Berhampur Municipality. Defence examined none. The J.M.S.C., Berhampur, who tried the case, by his judgment dated 18.08.1988 acquitted the accused-respondent of the charges with a finding that the prosecution has failed to prove the ingredients of the above offences.

Mr. Choudhury, learned counsel for the appellant, submits that the trial court grossly fell into error in disbelieving the visit of P.W.1 to the spot on the ground that P.W.1 had not ascertained the ownership of the building in question. He further submitted that the trial court has committed an error in holding that the show-cause notice was not served on the accused-respondent.

Now, let us notice some of the provisions of the Act, which are relevant for the present purpose. Section 273A runs thus:- “273-A. Demolition or alteration of building work unlawfully commenced, carried on or completed- (1) If the Executive Officer is satisfied – (i) that the construction or reconstruction of any building or well – (a) has been commenced without obtaining the permission of the 3 (b) (c) Executive Officer or where an appeal has been preferred to the Municipality in contravention of any order passed by the Municipality in appeal; or is being carried on, or has been completed otherwise than accordance with the plans or particulars on which such permission or order was based; or is being carried on, or has been completed in breach of any of the provisions of this Act or of any rule or bye-law made under this Act or of any direction or requisition lawfully given or made under this Act or such rules or bye-laws; or that any alteration required by any notice issued under Section 271 have not been duly made; or that any alteration of or addition to any building or any other work made or done for any purposes in, to or upon any building, has been commenced or is being carried on or has been completed in breach of Section 273, he may make a provisional order requiring the owner or the builder to demolish the work done, or so much of it as, in the opinion of the Executive Officer, has been lawfully executed or to make such alteration may in the opinion of the Executive Officer be necessary to bring the work into conformity with the Act, bye-laws, rules direction or requisition as aforesaid, or with the plans and particulars on which such permission or order was based, and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building or well.

In view of the above, there is no infirmity in the impugned judgment and order of acquittal. Therefore, the appeal stands dismissed. ……………………………. PRADIP MOHANTY,J. High Court of Orissa, Cuttack, The 12th July, 2006/Samal