The Vellore Municipality vs Rajeswari Ammal

M.N. Moorthy, J.—This is an appeal by the Vellore Municipality represented by its Commissioner against the order of the learned Judicial Second Class Magistrate, Vellore, passed in S.T.R.No.15833 of 1977 acquitting the respondent of the offences with which she was charged under the Tamil Nadu District Municipalities Act, hereinafter referred to as ''the Act''.

The facts of the prosecution case are within a narrow compass. The accused constructed a building in deviation of the plan submitted and approved by the Municipality. P.W.1, the Town Planning Inspector, after inspecting the construction by the accused at No.32, Kattai Subhedar St., found that the construction had not been done according to the plan approved and sent a report to his superior officers on 28th October, 1976, by Ex.P2. On 27th November, 1976, a provisional order, dt. 1st November, 1976 was served on the accused as contemplated under the provisions of the Act. It is Ex.P3. On 13th December, 1976, this provisional order, Ex.P3, was confirmed by a final order, Ex.P4 and it was served on the accused on 24th December, 1976. On 5th January, 1977, the accused submitted an altered plan Ex.P5 regarding the concerned property. The said altered plan, after consideration by the Municipality was rejected on 2nd March, 1977 under Ex.P6 and it was served on the accused on 4th March, 1977.

On 20th April, 1977 again P.W.1 the Town Planning Inspector inspected the premises of the accused and he submitted a report to the office by Ex.P7. On 3rd May, 1977, the confirmation or final order on the provisional order, Ex.P3, was served on the accused, which is marked as Ex.P8. A complaint by the authority was filed in court on 19th July, 1977, dt. 13th July, 1977 for offences under S. 205, 317 and 347 of the Act.

In the trial Court it was argued that the original final order, Ex.P4, was served on the accused on 24th December, 1976 and in terms of S. 347 of the Act, within three months the prosecution should have been launched against the accused whereas in this case, the complaint was filed only on 15th July, 1977. The learned Magistrate held that there was no need for the executive authority to issue Ex.P8, the final confirmation order confirming the provisional order, Ex.P3 served on the accused on 27th November, 1976, and this was only to bypass the limitation period. On that limitation point, he acquitted the accused. The present appeal is preferred by the Municipality aggrieved by the lower court''s order.

Though the provisional order was served on the accused on 27th November, 1976 by Ex.P3 and the confirmation order on 24th December, 1976, ordinarily the municipality would have taken action against the accused within the prescribed limitation period under S. 347 of the Act. But, the accused had submitted on 5th January, 1977 itself an altered plan, Ex.P5, for the consideration of the Municipality. After it was considered the plan was rejected by the authority. Even on 20th April, 1947, when P.W.1 inspected the premises, the accused had not complied with the notice served on her. Finally, on 3rd May, 1977, Ex.P8, a final confirmation order, was served on the accused. There can be no doubt that it was at the instance of the accused that the municipality was led to make a fresh assessment of the altered plan, Ex.P5, sent to the Municipality. Ex.P5 is an invitation to the Municipality to examine the matter afresh. It was examined by the authority and ultimately they rejected the altered plan and served the notice on the accused on 4th March, 1977 by Ex.P6.

In the circumstances of the case I think it is reasonable to hold that both parties should be considered to have disregarded the final confirmation order served on the accused on 24th December, 1976 by Ex.P4. It is certainly competent to the Municipality, after examining afresh on the altered plan submitted by the accused thus entering upon a course of negotiation which has the effect of keeping the notice in abeyance, to pass confirmation or final order on 3rd May, 1977 by Ex. P8. As the complaint is filed within three months of serving Ex. P8, on the accused, it is certainly not time-barred. The prosecution, on the evidence of P.W. 1 and the documents filed has proved beyond court that the accused has committed an offence under S. 317 read with S. 205 of the Act. Hence I set aside the order of acquittal by the trial Court and convict the accused for an offence under S. 317 read with S. 205 of the Act and sentence her to pay a fine of Rs. 100 in default to suffer one week''s simple imprisonment. Time for payment is one month from to-day. In the result the appeal is allowed.