Executive Officer, Berhampur Municipality Vs. Rajendra Routo - Court Judgment

SooperKanoon Citationsooperkanoon.com/532426
SubjectCriminal
CourtOrissa High Court
Decided OnJun-19-1995
Case NumberCriminal Appeal No. 162 of 1985
JudgeA. Pasayat, J.
Reported in1995(II)OLR115
ActsOrissa Municipal Act, 1950 - Sections 267, 268(1) and 268(2)
AppellantExecutive Officer, Berhampur Municipality
RespondentRajendra Routo
Appellant AdvocateNabakishore Misra and Kailash Chandra Kar
Respondent AdvocateNone
DispositionAppeal allowed
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. a. pasayat. j.1. order of acquittal passed by the learned judicial magistrate, second class, berhampur (in short,jmsc') while dealing with a complaint alleging contravention of provisions contained in sections 264 and 266 of the orissa municipal act, 1950 (in short, the 'act') is the subject-matter of challenge. decide d on 19th june, 1995.2. the executive officer acting on behalf of the berhampur municipality (described hereinafter as 'complainant') is the appellant in this appeal. he lodged the complaint alleging that rajendra routo (hereinafter referred to as the 'accused') had undertaken construction without requisite permission. it was indicated that the accused had submitted his building plan on 3-6-1983, but the same was returened to him for rectification of defects on 29-6-1983. on 10-11-1983. and thereafter it was noticed that he had constructed r. c. c. roofed building in aska road street of ward no. 15 within berhampur municipal areas, without requisite permission.3. the accused pleaded innocence.4. two witnesses were examined to further the prosecution case while the accused declined to. examine any witness. pvv 1 was the town surveyor, and pw 2 was the amin. the learned jmsc held that though submission of building plan was accepted, there was no material on record to show that the letter dated 29-6-1988 claimed to have been sent by the municipality to the accused for rectification of defects was actually served on the accused. placing reliance on the provisions of sub-section (2) of section 268 of the act. it was held that there was deemed grant of permission and. therefore, there was no contravention as alleged. 5. mr.n. k. mishra, learned counsel for the appellant submitted that section 268(2) of the act has no application to the facts of the case as it relates to inaction within the stipulated time by the municipal council and there was no material placed on record to show that any motion was made before the council. 6. in spite of notice the accused-respondent has not entered appearance in this appeal. 7. for appreciation of the contentions raised by the learned counsel for appellant, it is necessary to take note of the provisions contained in sections 267 and 268 which read as follows :''267. period within which executive officer is to grant or refuse to grant permission to execute work- within thirty days after the receipt of any application made under section 264 for approval of a site or for permission to execute any work or of any information or of documents or further -information or documents required rules or bye-laws, the executive officer shall by written order either approve the site or grant such permission or refuse on one or more of the grounds mentioned in section 269 to grant it. 268. reference to council if executive officer delays grant or refusal of approval or permission- (1) if, within the period prescribed by section 267, the executive officer has neither given nor refused his approval of a building site or his permission to execute any work, as the case may be, the 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. (2) 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 such approval or permission shall be deemed to have been given ; and the applicant may proceed to execute the work; but not so as to contravene any of the provisions of this act or any rules or bye-laws made under this act.' 8. section 267 provides the period within which the executive officer is to grant or refuse to grant permission to execute work. if within the period prescribed under section 267, the executive officer has neither given nor refused his approval of a building site or his permission to execute any work, as the case may be, the council shall be bound, on a written request of the applicant, to determine by written order whether such approval or permission should be given or not. section 8 of the act provides that there shall be established for each municipality a body to be called the municipal council. functions of the municipal council are described in chapter ix. section 95 provides that the powers, duties and functions of municipal council are required to be exercised and to be performed or discharged by resolution passed at a meeting of the municipal council and not otherwise. a municipal ' council may, as provided in section 96, delegate its power to the chairman or executive officer any of the powers, duties or functions conferred or imposed or assigned to it under the act. except the powers, duties or functions to be prescribed or reserved or assigned to a chairman . under the act. the deemed grant of permission as provided in sub-section (2) takes effect only when the council does not deliver to the applicant an order either granting or refusing such approval or permission within one month from the date of such written request. only in the event of council's inaction within the stipulated time, the approval or permission, as the case may be shall be deemed to have been given, and the applicant may proceed to execute the work. however, the deemed approval or permission does not authorise contravention of any of the provisions of the act or orissa municipal rules,1953(in short; the 'rules) or 'bye-laws made under the act. the provisions of sub-section (2) of section 268 apply only when an application is made to the council as required under sub-section (1) of the said section, and not the otherwise. there is no material oh record to show that any request, as contemplated under sub-section (1) of section 268 was made. the learned jmsc was not justified in her conclusion that the accused was protected under sub-section (2) of section 268 of the act. the order of the learned jmsc cannot be maintained. since the question of appropriate penalty which can be imposed in terms of section 385-a of the act was not considered said aspect alone shall be considered by the trial court after due notice to the accused.the appeal is allowed to the extent indicated above.
Judgment:

A. Pasayat. J.

1. Order of acquittal passed by the learned Judicial Magistrate, Second Class, Berhampur (in short,JMSC') while dealing with a complaint alleging contravention of provisions contained in Sections 264 and 266 of the Orissa Municipal Act, 1950 (in short, the 'Act') is the subject-matter of challenge. Decide d on 19th June, 1995.

2. The Executive Officer acting on behalf of the Berhampur Municipality (described hereinafter as 'complainant') is the appellant in this appeal. He lodged the complaint alleging that Rajendra Routo (hereinafter referred to as the 'accused') had undertaken construction without requisite permission. It was indicated that the accused had submitted his building plan on 3-6-1983, but the same was returened to him for rectification of defects on 29-6-1983. On 10-11-1983. and thereafter it was noticed that he had constructed R. C. C. roofed building in Aska Road Street of Ward No. 15 within Berhampur Municipal areas, without requisite permission.

3. The accused pleaded innocence.

4. Two witnesses were examined to further the prosecution case while the accused declined to. examine any witness. PVV 1 was the Town Surveyor, and PW 2 was the Amin. The learned JMSC held that though submission of building plan was accepted, there was no material on record to show that the letter dated 29-6-1988 claimed to have been sent by the Municipality to the accused for rectification of defects was actually served on the accused. Placing reliance on the provisions of Sub-section (2) of Section 268 of the Act. it was held that there was deemed grant of permission and. therefore, there was no contravention as alleged.

5. Mr.N. K. Mishra, learned counsel for the appellant submitted that Section 268(2) of the Act has no application to the facts of the case as it relates to inaction within the stipulated time by the municipal Council and there was no material placed on record to show that any motion was made before the Council.

6. In spite of notice the accused-respondent has not entered appearance in this appeal.

7. For appreciation of the contentions raised by the learned counsel for appellant, it is necessary to take note of the provisions contained in Sections 267 and 268 which read as follows :

''267. Period within which Executive Officer is to grant or refuse to grant permission to execute work- within thirty days after the receipt of any application made under Section 264 for approval of a site or for permission to execute any work or of any information or of documents or further -information or documents required rules or bye-laws, the Executive Officer shall by written order either approve the site or grant such permission or refuse on one or more of the grounds mentioned in Section 269 to grant it.

268. Reference to Council if Executive Officer delays grant or refusal of approval or permission-

(1) If, within the period prescribed by Section 267, the Executive Officer has neither given nor refused his approval of a building site or his permission to execute any work, as the case may be, the 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.

(2) 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 such approval or permission shall be deemed to have been given ; and the applicant may proceed to execute the work; but not so as to contravene any of the provisions of this Act or any rules or bye-laws made under this Act.'

8. Section 267 provides the period within which the Executive Officer is to grant or refuse to grant permission to execute work. If within the period prescribed under Section 267, the Executive Officer has neither given nor refused his approval of a building site or his permission to execute any work, as the case may be, the Council shall be bound, on a written request of the applicant, to determine by written order whether such approval or permission should be given or not. Section 8 of the Act provides that there shall be established for each Municipality a body to be called the Municipal Council. Functions of the Municipal Council are described in Chapter IX. Section 95 provides that the powers, duties and functions of municipal Council are required to be exercised and to be performed or discharged by resolution passed at a meeting of the municipal Council and not otherwise. A municipal ' Council may, as provided in Section 96, delegate its power to the Chairman or Executive Officer any of the powers, duties or functions conferred or imposed or assigned to it under the Act. except the powers, duties or functions to be prescribed or reserved or assigned to a Chairman . under the Act. The deemed grant of permission as provided in Sub-section (2) takes effect only when the Council does not deliver to the applicant an order either granting or refusing such approval or permission within one month from the date of such written request. Only In the event of Council's inaction within the stipulated time, the approval or permission, as the case may be shall be deemed to have been given, and the applicant may proceed to execute the work. However, the deemed approval or permission does not authorise contravention of any of the provisions of the Act or Orissa Municipal Rules,1953(in short; the 'Rules) or 'bye-laws made under the Act. The provisions of Sub-section (2) of Section 268 apply only when an application is made to the Council as required under Sub-section (1) of the said section, and not the otherwise. There is no material oh record to show that any request, as contemplated under Sub-section (1) of Section 268 was made. The learned JMSC was not justified in her conclusion that the accused was protected under Sub-section (2) of Section 268 of the Act. The order of the learned JMSC cannot be maintained. Since the question of appropriate penalty which can be imposed in terms of Section 385-A of the Act was not considered said aspect alone shall be considered by the trial Court after due notice to the accused.

The appeal is allowed to the extent indicated above.