R.N. Misra, J.
1. On 19-2-1973, the Executive Officer of the Notified Area Council, Hirakud, laid a complaint alleging commission of an offence punishable under Section 385-A of the Orissa Municipal Act (hereinafter referred to as the 'Act') by the respondent on the ground that the latter had proceeded to construct a house without appropriate permission of the Notified Area Council. There was no dispute that requisite permission had not been taken but the accused in his defence pleaded that the construction had begun before the Notified Area Council itself was constituted and, therefore, no permission was necessary for the construction of the building in question. It was further pleaded that the prosecution was barred by limitation prescribed under Section 347 of the Act
The learned Magistrate found that the accused had been convicted on 17-9-1970 in Criminal Case No. III (A) C.C. 172 of 1970 for having commenced construction of the house without requisite permission. According to the trial Court, the prosecution had to be launched within twelve months as required by the proviso to Section 347 of the Act and in view of the special limitation, the prosecution in this case was barred having been launched beyond twelve months from the appropriate date. Accordingly it acquitted the accused. With leave the Notified Area Council appealed to this Court against acquittal.
2. During hearing of the appeal before our learned brother B.K. Ray, J. certain decisions of this Court were cited. As our learned brother was not inclined to accept the view expressed in some of those decisions, he asked this matter to be placed before a Division Bench.
3. The fate of the appeal depends upon a true construction of the Proviso to Section 347 of the Act. It is appropriate that we extract Section 347:
Persons empowered to prosecute: Save as otherwise expressly provided in this Act, no person shall be tried for any offence against the provisions of this Act, or of any rule, regulation or by-laws made under it, unless a complaint is made by the police or the Executive Officer of a municipal council, or by a person expressly authorised in this behalf by the municipal council or its Executive Officer, within three months of the commission of the offence. But nothing herein shall affect the provisions of the Code of Criminal Procedure, 1898, in regard to the power of certain Magistrates to take cognizance of offences upon information received or upon their own knowledge or suspicion.
Provided that failure to take out a licence or obtain permission under this Act shall, for the purposes of this section, be deemed a continuing offence until the expiration of the period, if any, for which the licence or permission is required, and if no period is specified, complaint may be made at any time within twelve months from the commencement of the offence.
Chapter XVII of the Act makes provisions for building regulations. Section 263 bans use of a site for construction of a building otherwise than in accordance with the provisions of Chapter XVII or Rules and By-laws made under the Act. Section 264 provides for application in writting for approval of the site and for permission to execute the work. Section 226 provides:
Prohibition against commencement of work without permission:
The construction or reconstruction of a building shall not be begun unless and until the Executive Officer has granted permission for the execution of the work.' Section 273-A authorises the Executive Officer, if satisfied, to require demolition or alteration of a building unlawfully commenced, carried on or completed. Several other provisions have been made under Chapter XVII to which it is not necessary to refer for the present purpose. Section 385-A of the Act makes provision for imposition of penalty for unlawful construction of buildings and Clauses (a), (b) and (c) are intended to meet different situations.
4. For construction of a building, permission is thus a pre-requisite. Under Section 385-A (a) of the Act, if construction of a building is commenced without requisite permission of the Executive Officer, the offence is committed. Admittedly in this case no permission has been obtained. On the earlier occasion, the respondent was prosecuted for commencing construction of the building without requisite permission and there was conviction. The plea that the construction had begun prior to the constitution of the Notified Area Council seems to be without basis particularly when on the earlier occasion such a plea had not been raised. In view of the position that permission is a pre-requisite and the same has not been obtained, the respondent, if validly prosecuted was bound to be convicted.
5. The prosecution in this case has been found to have been barred by limitation. Under Section 347 of the Act, the complaint by the police or the Executive Officer or a person duly authorised by the Municipal Council or the Executive Officer is required to be made within three months from the date of commission of the offence. The proviso is by way of an exception. In the first part it indicates what shall be deemed to be continuing offences for the purpose of computing the period of limitation and in the second part, where no period in a licence or permission is specified, a period of twelve months from the commencement of the offence has been provided. In the case of construction of a building as provided under Section 270 of the Act, the permission remains valid for one year from the date of grant and after expiry of that period, the permission lapses. The construction of a building without obtaining necessary permission is an offence and that offence is committed when the unauthorised construction commences. The life of the permission being twelve months as already indicated, the offence shall be deemed to be continuing for the period of twelve months from the date of its commencement, namely, when the unauthorised construction started. Even if we take it that the second portion of the proviso is applicable, the period is also twelve months from the date of commencement of the offence.
6. The Proviso came up for consideration for a different purpose before Ahmad, C.J. in the case of Marchia Oram v. Executive Officer, Rourkela (1967) 33 Cut LT 350 : 1967 Cri LJ 905. The learned Chief Justice observed :
For the purposes of this section therefore the construction of any building without the permission of the Executive Officer is to be construed as a continuing offence. In other words, this provides that the liability for the unauthorised construction continues until the expiration of the period, if any, for which the licence or permission is required. Thus that limitation as provided in the main body of the Section 347 will commence to run from moment to moment during this period. In that way the proviso has a twofold implications : (1) that it extends the period of limitation to the extent as stated therein, and, (2) that it constitutes every moment of the existence of the unauthorised construction a fresh offence during that period. As such in view of the latter concept the contemner may be convicted for each of the moments of the existence of the unauthorised construction during that period as if he is committing a new offence every moment. It will thus result in the multiplication of the criminal acts resulting in multiplicity of conviction and sentence. But for each conviction and sentence there must be a separate trial, though in one trial the commission of the continuing offence may be noticed up to the date the order is passed....
The liability for being subjected to a daily fine for the continuing offence was in issue. Section 385-A of the Act, in clear terms indicates that the daily fine would relate to each day during which the offence is proved to have continued after the first day. It is not the Proviso to Section 347 but the terms of Section 385-A of the Act which were relevant for the purpose of that case. Nothing has been said by the learned Chief Justice which resolves the present difficulty.
7. The interpretation of the Proviso for purposes of limitation came up for consideration in the case of Executive Officer, Bhubaneswar v. K.S. Subudhi (1974) 40 Cut LT 85. Acharya, J. observed :
Under the Municipal law, construction or reconstruction of buildings shall not be begun and any addition thereto or alteration thereof shall not be made unless and until permission for the execution of the work is taken from the Municipal authorities (see Sections 263, 266 and 273 of the Act). Any such construction made without permission of the Municipality constitutes an offence punishable under Section 385-A of the Act. Every moment of the existence of the unauthorised construction constitutes a fresh offence, and the offender can be prosecuted within twelve months from the time of the detection of the unauthorised construction, as found above.
This view of the learned single Judge was not accepted by Ray, J., as would appear from the order of reference to the Division Bench.
8. In the present case as also in the case disposed of by Aoharya, J., the prosecution was under Clause (a) of Section 385-A of the Act, namely the construction had commenced without permission of the Executive Officer. The offence, therefore, was committed when unauthorised construction commenced. Limitation for initiation of a prosecution is three months as provided in the main part of Section 347 of the Act. We agree with our learned brother Acharya, J,, that the offence is a continuing one and the Proviso applies. Ordinarily, 3 months period from the commencement of the unauthorised construction would have been the requisite period within which a complaint could be lodged. By application of the Proviso, the cause of action is deemed to arise within the period for which licence or permission would have been taken or where no period is specified within twelve months from the date of commencement of the offence. Therefore, the period of three months in the main portion of Section 347 could commence running in a case to which the Proviso applies either from the end of the period for which the licence or permission is required to be taken or twelve months from the date of commencement of the offence. It is not correct to say that every moment of the existence of the unauthorised construction constitutes a fresh offence and the offender can be prosecuted within twelve months from the time of detection of the unauthorised construction. Existence of the unauthorised construction is not the basis for the prosecution the commencement of unauthorised construction is the real basis and the extension contemplated under the Proviso on the basis of continuing offences is the only further relevant feature. There is no justification for the submission that within twelve months from the time of detection of the unauthorised construction, a prosecution can be initiated. For instance, if a building has been completed several years before but the Municipal Authorities detect the unauthorised construction within a period of twelve months from initiating the prosecution, the prosecution could not be valid. The date of detection by the Municipal authorities is not a relevant aspect for computing limitation. The commencement of the unauthorised construetion is the sine qua non as modified by the Proviso. The view expressed in paragraph 10 of the reported decision ((1974) 40 Cut LT 851) must, therefore, be confined to the facts of that case and need not be taken as a statement of the law for purposes of limitation.
9. In the petition of complaint in the present case, the date of commencement of unauthorised construction has not been indicated. In the two notices (Exhibits 1 and 2) dated 13-6-1972 and 2-6-1972, there is no indication of the date of commencement of unauthorised construction nor have the two prosecution witnesses deposed about it. As already stated, the complaint petition was filed on 19-2-1973. It was obligatory for the prosecution to show that the launching of the prosecution was within limitation. Mr, Patnaik for the appellant reiterated his contention advanced before the learned single Judge at the hearing of this appeal, namely when an unauthorised construction is carried piece-meal, every item of construction would give rise to a cause of action to prosecute and would be taken as commencement of unauthorised construction. Where by disjointed activity spread over broken periods, a construction is undertaken, the argument of counsel may have application. Where, however, a construction is carried on in a regular process with short intervals, it cannot be said that construction of each item or construction carried on each day is commencement of unauthorised construction. Prosecution relies upon the conviction of the respondent on the earlier occasion on 17-9-1970. In the absence of any clear material as to when the further unauthorised construction started, the present prosecution cannot be said to be within limitation. Considering the Proviso and allowing a full 1'2 months period and the other period of three months to be tagged with, a total period of fifteen months would have been available to launch the prosecution. In the absence of clear material that unauthorised construction commenced within a period of fifteen months prior to 19-2-1973, the view taken by the learned Magistrate cannot be said to be erroneous.
10. The appeal has no merit and must fail. We accordingly dismiss the appeal.
N.K. Das, J.
11 I agree.