Executive Officer, Berhampur Municipality Vs. Brundaban Sahu - Court Judgment

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- 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. - learned sdjm was justified in his conclusion that complainant has failed to establish its case.a. pasayat, j.1. executive officer, berhampur municipality (hereinafter referred to as the 'complainant') calls in question legality of order passed by learned sub-divisional judicial magistrate, berhampur (in short, the 'sdjm') holding that there was no contravention of the provision of section 290(1)(w) of the orissa municipal act, 1950 (in short the 'act') by the respondent brundaban sahu (hereinafter referred to as 'accused') as alleged by municipality.2. background facts necessary for disposal of appeal are as follows :on 7-4-1984 a complaint was filed by complainant alleging that on 20-9-1933 and thereafter accused was found to have installed three motors of different horse power in his saw mill at aska road in berhampur town without obtaining licence for the year 1983/84 as required under section 290 of the act. on 27-7-84, accused had filed an application before the chairman of municipality admitting his guilt and expressing his willingness to deposit the requisite fees as is evident from the application (ext. 1). since accused on installation of three motors without obtaining licence, there was contravention of provision of section 290(1) of the act, attracting penal consequences in terms of section 383 of the act.3. the accused pleaded innocence. learned sdjm held that sub-section (1) of section 290 of the act mandates a notification by the municipal council notifying places within the municipality where no actively of any of the purposes indicated in the section itself shall be carried on, except in accordance with conditions specified in the licence it was observed that there was no evidence to show that any notification in that regard had been notified in order to attract application of section 290 of the act. additionally it was held that complaint was filed beyond the period prescribed under section 347 of the act.4. mr. n. k. misra, learned counsel for appellant submits that there was a notification and in view of the fact that there was no challenge about existence of such notification, the same was not brought before the learned sdjm and no adverse inference should have been drawn. additionally it is submitted that section 347 of the act has no application to the facts of the case.5. section 290 of the act deals with purposes for which places may not be used without licence. one of the purposes which is relevant for the purpose of this case is prescribed in section 290(1)(w), which reads as follows :'290. purposes for which places may not be used without licence. (1) the municipal council may notify that no place within the municipality as may be fixed by it shall be used without a licence granted by the executive officer and except in accordance with the conditions specified in such licence, for any one or more of the following purposes, namely : xxx xxx xxx (2) using for any industrial purpose any fuel or machinery, and xxx xxx xxxthere can be no doubt that use of any fuel or machinery for industrial purpose at a place licence is required. sub-section (1) of section 290 provides that the council has to notify that no places within the municipality, as may be fixed by it, shall be used without a licence granted by the executive officer and except in accordance with the conditions specified in such licence, for any one or more of the purposes enumerated. sine qua non for application of section 290 is requisite notification. unfortunately no notification was produced or brought on record before the learned sdjm. as observed by this court in several cases, for example prannath samantrai v. bhagirathi sahoo: vol. xxxi (1965) clt 504 and gurucharan singh v. executive officer, jeypore municipality, ilr 1964 cutt. 24 notification as required under section 290(1) of the act must be published in the orissa gazette. since gazette itself was not produced, there is no material to show that there was any notification. rule 602 of orissa municipal rules, 1953 (in short, the 'rules') provides that every notification required to be published by a municipal council under the act shall be published in oriya by affixture in the notice board of the municipal office concerned and also proclaimed by beat of drum. it was observed in prannath's case (supra) that a mere affixture in the notice board of municipality and beat of drum is not sufficient and publication in orissa gazette as required under orissa general clauses act are to be complied with. learned sdjm has come to a categorical finding about absence of material as regards requirement of notification. learned counsel for appellant strenuously urged that requisite notification is there. but it could not be satisfactorily explained as to why it was not produced before learned sdjm, i do not think it proper to accept prayer to consider the notification which was sought to be produced before me. learned sdjm was justified in his conclusion that complainant has failed to establish its case. in view of this conclusion it is not necessary to deal with about application of section 347 of the act.this appeal fails and is dismissed.