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S.V. Palaniappan Vs. the Commissioner of Salem Municipality and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Reported in(1966)2MLJ169
AppellantS.V. Palaniappan
RespondentThe Commissioner of Salem Municipality and anr.
Cases ReferredPublic Prosecutor v. Vallaiya Mudalidr A.I.R.
Excerpt:
.....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, permission or registration is required and if no period is specified complaint may be made at any time within twelve months from the commencement of the offence. the prosecution in this case is for failure to comply with the requisition under section 216(3) of the act, and this is not a case of any continuing offence. the offence is complete on the failure of the petitioner to remove the offending construction within three days of the receipt of the notice as directed......the records that for putting up unauthorised constructions without obtaining the permission of the executive authority of the municipality, provisional notice was issued under section 216(1) of the act on 31st may, 1963, requiring the accused (petitioner herein) to remove the offending constructions. after giving an opportunity to the petitioner to show cause, the executive authority under section 216(3) confirmed the order on 1st august, 1964 and directed the petitioner to remove the offending constructions within three days of the receipt of the notice by the petitioner. this notice was served on the petitioner on 11th august, 1964. the notice itself specifies that on failure to comply with the directions contained therein, proceedings would be taken against the petitioner under.....
Judgment:
ORDER

M. Natesan, J.

1. This revision has been preferred by the accused in a prosecution under Section 216 read with Section 317 of the Madras District Municipalities Act. The accused has been convicted for the offence charged and sentenced to pay a fine of Rs. 25. It is seen from the records that for putting up unauthorised constructions without obtaining the permission of the Executive Authority of the Municipality, provisional notice was issued under Section 216(1) of the Act on 31st May, 1963, requiring the accused (petitioner herein) to remove the offending constructions. After giving an opportunity to the petitioner to show cause, the Executive Authority under Section 216(3) confirmed the order on 1st August, 1964 and directed the petitioner to remove the offending constructions within three days of the receipt of the notice by the petitioner. This notice was served on the petitioner on 11th August, 1964. The notice itself specifies that on failure to comply with the directions contained therein, proceedings would be taken against the petitioner under Section 317(c) of the Act. Clause (c) of Section 317 providing for penalty for unlawful building, runs thus:

If the construction or reconstruction of any building or wall

* * * * * *(c) is carried on or completed in contravention of any lawful order or in breach of any provision contained in this Act or in any rule or by-law made hereunder or of any direction or requisition lawfully given or made, or if any alterations or additions required by any notice issued under Section 205 or Section 215 are not duly made, or

if any person to whom a direction is given by the Executive Authority to alter or demolish a building or wall under Section 216 fails to obey such direction,

the owner of the building or wall, as the case may be, shall be liable on conviction to a fine which may extend * * * * * to five hundred rupees....

Section 347 of the Act provides a period of limitation for commencing prosecution and runs thus:

No person shall be tried for any offence against the provisions of this Act, or of any rule or bylaw made under it unless complaint is made by the police, or the Executive Authority or by a person expressly authorised in this behalf by the Council or the Executive Authority within three months of the commission of the offence....

Provided that the failure to take out a licence, obtain permission or secure registration 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, permission or registration is required and if no period is specified complaint may be made at any time within twelve months from the commencement of the offence.

Learned Counsel for the petitioner relies upon the provisions of Section 347 and contends that statedly the prosecution in this case has been launched on 3rd December, 1964, beyond three months after the offence had been committed. Under the notice issued by the Municipality, pursuant to the order under Section 216(3), the offending construction must have been demolished within three days of the receipt thereof. That notice had been received by the petitioner on 11th August, 1964. It is a final notice and not a provisional notice. That notice itself warned the petitioner that proceedings will be taken against him under Section 317(c) of the Act. It goes without saying that the prosecution in this case has been commenced beyond time and cannot be sustained. The statute is clear and no authority is required. Learned Counsel for the petitioner, however, drew my attention to the decision of this Court in Public Prosecutor v. Vallaiya Mudalidr A.I.R. 1948 Mad. 470.

2. On behalf of the respondent Municipality it is submitted that the proviso to Section 347 may apply and reliance was placed on Section 199 of the Act which provides that 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. But it is clear that the present case comes under Section 317(c) of the Act. The prosecution in this case is for failure to comply with the requisition under Section 216(3) of the Act, and this is not a case of any continuing offence. The offence is complete on the failure of the petitioner to remove the offending construction within three days of the receipt of the notice as directed. To such a case the proviso to Section 347 has no application. In the circumstances the contention of the learned Counsel for the petitioner that the period of limitation is only three months has to be accepted. The revision therefore succeeds. The petitioner (accused) is acquitted and the fine amount, if collected, will be refunded.


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