The Commissioner, Karur Municipality, Karur vs Narayan Konar

Padmini Jesuddurai,, J.—This appeal by the complainant the Commissioner, Karur Municipality, is directed against the acquittal of the

respondent by the Judicial Second Class Magistrate No. I, Karur in S.T.C. 915/86 tried for an offence under S. 216(3) read with S. 317 of the

Tamil Nadu District Municipalities Act 1920. (the Act for short).

The case of the prosecution as is seen from the evidence of P.W. 1, the Town Planning Inspector is as follows : On 24-10-85, he inspected the

building in B. No. 935 in Jawahar Mansion, Karur, belonging to the respondent and found that the respondent had commenced construction of an

underground cellar 6 metres long and 3 metres broad, by digging the foundation, levelling up by putting up R.C.C. Pillars. No permission of the

Municipality had been obtained for the construction of the above underground cellar and hence he submitted Ex. P. 1 report to the appellant. A

notice Ex. P. 2 under S. 216(1) and (2) of the Act was issued to the respondent informing him about the commencement of the unlawful

construction and requiring him, within three days of the receipt of the notice, either to demolish it or to show cause why the appellant should not

demolish it. Ex. P. 2 was served on Venugopal the son of the respondent. Since the building was neither demolished nor any cause was shown as

to why it should not be demolished by the appellant, the provisional order was confirmed under S. 216(3) of the Act on 16-10-85 as per Ex. P-3.

Thereafter, the present prosecution was launched for the offences shown above.

The case of the respondent was that on 7-10-1985 he applied for approval of a plan which was returned on 13-11-85 and represented on 20-

12-85 as per Ex. D. 1 and the same was rejected on 19-3-1986 as per Ex. P. 5. Against the order of rejection, he had filed an appeal under S.

322(b) as per Ex. D. 2 Meantime, since the building had to be ahead with the construction, according to the specifications of the Indian Bank and

there was no violation of any of the building rules. His appeal was pending and hence there could be no prosecution. He also stated that Ex. P. 2

notice was never served on him and he had no knowledge about it.

During trial, on behalf of the prosecution P.W. 1 was examined and Exs. P. 1 to P. 5 were marked. The respondent examined himself as D.W.

1 and had Exs. D. 1 to D. 4 marked. The learned Magistrate held that so long as the statutory appeal under S. 322(b) of the Act was pending, as

was evidenced by Ex. D. 2, there could be no prosecution and acquitted the respondent. This has resulted in the present appeal being filed by the

aggrieved complainant.

Thiru Ashok Kumar, learned counsel for the appellant would strongly urge that the plea of non-service of Ex. P. 2 notice on the respondent has

no force since there was sufficient proof that the same had been served on the son of the respondent and this was sufficient compliance of the

statutory provisions. The respondent had not chosen to send any reply either to Ex. P. 2 or to Ex. P. 5 and was instead side tracking the issue by

seeking a different kind of relief. Regarding the finding of the learned Magistrate that so long as the appeal in Ex. D. 2 was still pending, the present

prosecution was ill-conceived, the learned counsel by referring to the various provisions of the Act on this aspect, urged that the appeal under S.

322(b) related to refusal to give permission before the commencement of a construction and that the present prosecution is for commencement of

construction without the necessary permission and that therefore, the view of the learned Magistrate on this aspect was erroneous.

The short question that arises for consideration is whether the order of acquittal of the learned Magistrate could be legally sustained ?

As is seen from the facts stated above, it is clear that most of the material allegations are admitted by the respondent. That the respondent is the

owner of the premises and construction of an under ground cellar was commenced and later completed without the approval of the appellant, are

admitted. It is not the case of the respondent, that he obtained any prior permission of the Municipality before commencing or completing the

construction. He would however deny that he ever received Ex. P. 2 notice. As D.W. 1 he has stated that Ex. P. 2 notice was not served on him

and that his son Venugopal is living separately.

On this aspect, it will be useful to refer to the relevant provisions of the Act. Section 216(2) requires the Executive Authority, when it makes a

provisional order u/s 216(1), to serve a copy of the provisional order on the owner of the building, together with a notice requiring him to show

cause within a reasonable time to be indicated in such a notice, as to why the order should not be confirmed, Section 331 of the Act indicates the

manner in which a notice under the Act has to be served. u/s 331 notice has to be served on the person by giving or tendering the notice to him or

if such person is not found, by leaving the notice in his last known place of abode or business or by giving or tendering the same to some adult

member or servant of his family and so on.

It is stated that in the instant case, the notice was served on the son of the respondent. If such service could be made the prosecution must in

addition show, that service was made on the son because the respondent was not found. Unless this condition is satisfied, the prosecution would

not be justified in resorting to the mode of serving the notice on anyone, other than the respondent. On the reverse of Ex. P. 2 the signature of one

Benugopal is found and underneath the endorsement of the person who had served the notice, that the notice had been served in person to

Venugopal is also found. Ex. P. 2 does not show that notice was served on Venugopal, because the respondent was not found. Nor has P.W. 1

stated that Ex. P. 2 was served on Venugopal because the respondent was not found.

In the absence of any evidence to show that this pre-requisite of Section 331 for serving notice on anyone other than the person on whom it

had to be a served is fulfilled; it cannot be taken to be proper service. When the special enactment indicates a mode of service for notice, the same

has to be followed. A reading of Section 216 would show that it is only the provisional order made u/s 216(1)that is required to be served under

Sec. 216(2) on the owner of the building, together with the notice requiring him to show cause within the time specified therein, as to why the order

should not be confirmed. It is pertinent to note that service of the final order passed under Sec. 216(3) confirming the provisional order is not

required to be served on the owner. This is so because, the object of making a provisional order is to bring it to the notice of the owner that he

was committing a violation, which would call for demolition of the work done and to give the owner an opportunity, either to demolish the work

himself or to show cause to the Municipality as to why the building should not be demolished by Municipality. An owner may either choose to

demolish the work himself or he may succeed in showing good cause, as to why the building should not be demolished, in which case the question

of confirming the order and demolishing or prosecuting would not arise. It is with this object that Section 216(2) requires the provisional order to

be served on the owner of the building. When such is the object behind this requirement, it is absolutely necessary that the service of the notice

should be in the manner laid down in the Act. Service of notice in the proper manner is not an empty formality. Unfortunately the learned

Magistrate had not considered this plea at all even though it had been specifically raised by the respondent in his evidence as D.W. 1. The basis for

the conviction is the order u/s 216(3). This order can be made, only after a proper service of the provisional order and after giving an opportunity

to the respondent, either to demolish or to show good cause. That not having been done in the manner prescribed by law, the very basis for the

prosecution goes. The acquittal of the learned Magistrate has to be sustained on this ground.

In view of the fact that this is an appeal against the acquittal which has to fail on the ground mentioned above, it is needless to take up the

second contention, which could be gone into in a more appropriate case.

In the result, the appeal fails and is dismissed.

Appeal dismissed.