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Public Prosecutor Vs. Duggurala Amarababu - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1958CriLJ122
AppellantPublic Prosecutor
RespondentDuggurala Amarababu
Excerpt:
.....determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - further, clause (2) of section 202 entitles the applicant to proceed with the work of construction in case the authority failed to determine whether the approval or permission should be given or not, as it would be deemed to have been given......under clause (2) of section 202, and the applicant would be entitled to proceed to execute the work of construction; but even then he should do so without contravening the provision of the act or any by-laws made under the act. reading 8section 197, 199, 201 and 202 together, it is clear that the applicant cannot carry out or complete the construction or reconstruction of the building within at least a period of 60 days after the date of the application and if he does so, he commits an offence under section 199 read with section 317 of the act.10. in the instant case, the respondent made an application under section 197 of the act on 27-8-54. permission was refused on 4-9-54 and he was charged on 15-10-54 i.e., even before the expiry of two months. there is nothing on record to show.....
Judgment:

Manohar Pershad, J.

1. This is an appeal' against the judgment in B. C. No. 627 of 1955 on the file of the First Class Bench, Gudivada, dated 3rd February. 1856, acquitting the respondent per majority opinion.

2. The facts in brief are : A charge sheet was filed under Sections 199 and 317 of the District Municipalities Act, by the Commissioner, Gudivada Municipality, against the respondent for having commenced construction of a terraced building without obtaining licence under Section 199 of the above Act, The respondent denied the offence. Two witnesses were examined. Three Magistrates constituting the Bench held the respondent not guilty and acquitted him on the grounds that notice was necessary before prosecuting the accused and that service of notice was not proper, The remaining two Magistrates took a different view and held the respondent guilty.

3. Shri Bhimaraju, the learned Public Prosecutor contended first that the majority view was based on an erroneous assumption that notice was essential before prosecuting the accused (respondent), and that there was absolutely no provision in the Act to come to that conclusion. He next urged relying on Section 331 of the Act that the notice was properly served and that the Magistrates committed an error in holding that the notice issued was not properly served.

4. Shri Sambasiva Rao, learned Counsel for the respondent contended first that notice was necessary before taking any action against the respondent and that the view taken by the majority was correct, that the notice issued and relied upon by the appellant was not served on the respondent, but is alleged to have been served on his father and that unless the appellant satisfies that the respondent was not available as provided under Section 311 of the Act, service of the notice not be deemed to be sufficient.

5. In order to appreciate the arguments, a reference to the relevant provisions of the Madras District Municipalities Act (Act V of 1920) is necessary.

6. The relevant, provisions for the purpose of the argument are Sections 197, 199, 201 and 202. Section 197 reads:

1) If any person intends to construct or re-construct a building other than a hut, he shall and to the executive authority

a) an application in writing for the approval of the site, .together with a site plan of the land, and

b) an application in writing for permission to execute the work together with a ground-plan, elevations and sections of the building, and a specification of the work.

Section 199 enjoins:

The construction or reconstruction of a building shall not be begun unless and until the executive authority has granted permission for the execution of the work.

It follows from the above provisions, that construction or reconstruction of a building could not be started without the permission of the executive authority.

7. Section 201 prescribes a period within which to apply to the executive authority which reads as follows:

Within thirty days after the receipt of any application made under Section 197 for permission to execute any work or of any information or of documents or further information or documents required under rules or by-laws, the executive authority shall by written order either grant such permission or refuse on one or more of the grounds mentioned in Section 203 to grant it...

8. under Section 202, the applicant is entitled if permission has not been granted within 30 days mentioned in Section 201, to make a written request to the council, and on receiving such request, the council is bound to determine by a written order whether such approval or permission should be given or not.

9. Further if the Council does not within one month from the receipt 'if such written request determine whether such approval or permission should be given or not, such approval or permission shall be deemed to have been given, as has been provided under Clause (2) of Section 202, and the applicant would be entitled to proceed to execute the work of construction; but even then he should do so without contravening the provision of the Act or any by-laws made under the Act. Reading 8Section 197, 199, 201 and 202 together, it is Clear that the applicant cannot carry out or complete the construction or reconstruction of the building within at least a period of 60 days after the date of the application and if he does so, he commits an offence under Section 199 read with Section 317 of the Act.

10. In the instant case, the respondent made an application under Section 197 of the Act on 27-8-54. Permission was refused on 4-9-54 and he was charged on 15-10-54 i.e., even before the expiry of two months. There is nothing on record to show that the respondent made any written request to the council as provided under Section 202 (1). The respondent cannot avail of the provisions of clause (2) of Section 202 because the offence was noted on 14-10-54 and he was actually Charged on 15-10-54 i.e, before the expiry of the said period.

11. The question is whether the act of the respondent in making the construction without the previous permission amounts to an offence under Section 199 read with Section 317 of the Municipalities Act. What is contended on behalf of the respondent is that a notice of refusal was not served on the respondent, the respondent cannot be held guilty. The first point to be considered is whether issue of any notice is necessary before taking action. What Section 201 provides is that the executive authority shall within the period prescribed by a written order either grant permission or refuse to grant on one or more grounds. It is nowhere provided in the said section that communication or intimation of the order is to be made to the applicant. It follows therefore that the section does not speak of any notice. I am fortified in this view by the subsequent provisions of. the Act, Section 202 casts a duty on the applicant to make a written request, to know whether his application for construction has been allowed or refused. If notice or intimation of the refusal was necessary, there was no need for this provision. Further, Clause (2) of Section 202 entitles the applicant to proceed with the work of construction in case the authority failed to determine whether the approval or permission should be given or not, as it would be deemed to have been given. This also goes to show that issue of notice is not contemplated under the said provisions. Three_ of the Magistrates in this case have taken the view that notice should have been issued to the accused before he could be prosecuted and further that the service of the notice was not proper. The learned Magistrates have not referred to any provision of the Act. The learned Counsel for the respondent relying on Section 216, tried to impress on me that when notice is necessary under that provision, there is no reason why the same principle should not be applied to the proceedings under Section 199 and Section 317. I am not inclined to accept this argument. Section 216 refers to demolition or alteration of building work unlawfully commenced, carried on or completed and in this' section there is a specific provision for the issue of a notice. As discussed above, there is no such provision in the section referred to earlier. The learned Counsel further argued that the executive authority should have proceeded under Section 216 and not under Section 317. I find that similar contention was raised on behalf of the respondent before the Bench and this was not accepted. When the learned Counsel concedes, that offences under Sections 199, 317 and 216 are separate and distinct offences, it cannot be said that the respondent could not be prosecuted under Sections 317 and 199. It would follow from the above discussions that issue of notice is not contemplated for taking any action under Sections 199 and 317, though I may point out that it would be advisable.

12. After this, I need not go into the other question whether service of notice was sufficient I or not..

13. In this view of the matter, I cannot agree with the view of the majority that the respondent is not guilty. Admittedly, the respondent has no licence to construct and he has not waited even till the expiry of two months. In these circumstances, the respondent will be held guilty. I therefore, hold the respondent guilty under Section 317 (a) and sentence him to pay a fine of Rs. 50/- m default to undergo two weeks' S. I.


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