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1956 Supreme(Ori) 101
IN THE HIGH COURT OF ORISSA
R.L.NARASIMHAM, J.
RAJBALLAV MISRA - APPELLANT
Versus
EXECUTIVE OFFICER, NOTIFIED AREA COMMITTEE - RESPONDENT
Criminal Revision No. 225 of 1955
Decided On : 14-03-1956
A. Das, for the Appellant; B.N. Das and S.C. Das, for the Respondent
A temporary shed is a 'building' as defined in Section 3(1) of the Orissa Municipal Act, 1950, and therefore requires permission for reconstruction.
Headnote:
ORISSA MUNICIPAL ACT, 1950 - SECTION 273-A, 385-A - CONSTRUCTION OF BUILDING WITHOUT PERMISSION - PENALTY FOR NON-COMPLIANCE - DAILY FINE - LEGALITY.
Fact of the Case:
The Petitioner was convicted under Section 385-A of the Orissa Municipal Act, 1950, for constructing a temporary shed without obtaining permission from the authorities. The appellate court upheld the conviction but reduced the sentence of fine. The Petitioner challenged the conviction and sentence on the grounds that (1) there was no evidence to establish that the site on which the shed stands is within the Notified Area of Bhubaneswar, (2) the shed is a temporary shed and does not require permission for repair or alteration, and (3) the sentence of daily fine till the removal of the unauthorized structure is illegal.
Finding of the Court:
The court held that (1) the Petitioner's admission and the evidence on record established that the shed was within the Notified Area of Bhubaneswar, (2) the shed, though temporary, is a 'building' as defined in Section 3(1) of the Orissa Municipal Act, 1950, and therefore requires permission for reconstruction, and (3) the sentence of daily fine was illegal as there was no evidence to show that the structure existed on the date of the prosecution.
Issues: 1. Whether the shed in question is within the Notified Area of Bhubaneswar? 2. Whether the shed is a 'building' as defined in Section 3(1) of the Orissa Municipal Act, 1950, and therefore requires permission for reconstruction? 3. Whether the sentence of daily fine was legal?
Ratio Decidendi: 1. The court held that the Petitioner's admission and the evidence on record established that the shed was within the Notified Area of Bhubaneswar. 2. The court held that the shed, though temporary, is a 'building' as defined in Section 3(1) of the Orissa Municipal Act, 1950, and therefore requires permission for reconstruction. 3. The court held that the sentence of daily fine was illegal as there was no evidence to show that the structure existed on the date of the prosecution.
Final Decision: The court maintained the conviction of the Petitioner under Section 385-A of the Orissa Municipal Act, 1950, and the sentence of fine of Rs. 50/- passed for that offence. The portion of the order directing the imposition of a daily fine was set aside.
JUDGMENT :
Narasimham, J. - This revision is against the appellate judgment of the Additional Sessions Judge, Puri, maintaining the conviction of the Petitioner u/s 385-A of the Orissa Municipal Act, 1950, passed by a First Class Magistrate of Khurda, but reducing the sentence of fine to Rs. 50/- and to a further fine of Rs. 2/- per day until the offending structure is removed.
2. The prosecution Case is that the Petitioner constructed a temporary shed 011 a site belonging to the Bhubaneswar Notified Area Committee without obtaining the permission of the authorities. This unauthorised structure was noticed by the Executive Officer of the Notified Area Committee who issued a notice to him on the 22nd February, 1954, directing him u/s 278-A of the Orissa Municipal Act to demolish the unauthorised construction by the 25th of that month. The Petitioner however sent a reply dated 25.2.54 stating that he had approached the Administrator of the New Capital, Bhubaneswar by a petition to permit him to keep the temporary shed for some time and requested the Executive Officer to drop the matter. But the Executive Officer rejected his request and sanctioned the prosecution of the Petitioner on 9-3-54.
3. The Overseer of the Bhubaneswar Notified Area Committee stated that on 20.2.54 he saw the temporary shed under construction. The shed was constructed partly with thatch and partly with G.C.I. sheets to serve as a roof. The roof was completed on 22-2-54 with thatch but subsequently G.C.I. sheets were used to cover up the thatch. This was done after the starting of the prosecution.
4. The Petitioner' main defence in the lower Courts was that he did not construct a new shed, but that there was an old shed at the spot belonging to one R.A. Kohili, which was purchased by the Petitioner from Kohili on 23-11-54, and that he subsequently repaired the shed for the purpose of using it temporarily for storing his goods until the erection of a permanent furniture shop later on. He led evidence to show his purchase of the structure from R.A. Kohili and has also examined some defence witnesses to show that R.A. Kohili constructed the temporary shed in 1949 and that as there was some damage to the shed, the Petitioner repaired the same. It is admitted that no permission of the Notified Area Committee was taken for altering or repairing the shed in question.
5. On these facts, Mr. A. Das on behalf of the Petitioner challenged the conviction and sentence on the following three grounds:
(1) There is no evidence to establish affirmatively that the site on which the shed stands is within the Notified Area of Bhubaneswar.
(2) The shed in question is admittedly a temporary shed and as the Notified area Committee has not declared it to be a 'hut' as defined in Section 3(14) of the Orissa "Municipal Act, permission of the Committee was not necessary for repairing or altering the shed.
(3) In any view of the case, the sentence of daily fine till the removal of the unauthorised structure is illegal.
6. The first point was taken up before the lower appellate Court and was rightly rejected by that Court. It is true that the prosecution have not proved the Government Notification constituting the Notified Area of Bhubaneswar and describing its boundaries. But a perusal of the entire evidence on record would show that it was the admitted case of both parties that the shed in question is within the Notified Area. In the Petitioner's reply dated 5-2.54 addressed to the Executive Officer and in his petition to the Administrator of the New Capital, Bhubaneswar he practically admitted that the shed in question is within the Notified Area. Similarly the two prosecution witnesses were not cross-examined with a view to show that the disputed shed is outside the Notified Area. Doubtless, if at any stage there had been some indication that this point would be challenged, the prosecution would have prove the map showing the exact limits of the Notified Area of Bhubaneswar and also showin
